ARBITRATOR’S AWARD
______________________________________________________________________________
In the Matter of:
American Federation of Government Employees,
Sixth District, Indianapolis, Indiana,
Plaintiff
and
Ronald Coe, Respondent
David A. Dilts
Arbitrator
FMCS Case No. 08-54157
September 16, 2008
______________________________________________________________________________
APPEARANCES:
Charging Official: National Vice President Arnold R. Scott
Prosecuting Official: National Representative Arvin Byrd
Respondent: Ronald Coe
Respondent’s Representative: William Sanders
This Arbitrator was selected by National President John Gage of the American Federation of Government Employees pursuant to the provisions of Article IX, Section 5(e) of the AFGE National Constitution. Hearings in the above cited matter were conducted on July 11, 12, 25, 26, and 27 2008 at the Offices of the Sixth District of the American Federation of Government Employees at 5664 Caito Drive, Suite 100, Indianapolis, Indiana. The parties filed post hearing briefs on August 5, 2008 and the transcript of the hearings in this matter was received on August 20, 2008.
CHARGES
By a letter dated January 29, 2008 Ronald Coe, herein the Respondent, was informed by National President John Gage of charges brought against him by National Vice President Arnold R. Scott, herein the Plaintiff. These charges arise out of the period that the Respondent served as President of AFGE Local 1411. The charges were brought against the Respondent by National Vice President Arnold Scott (herein also the plaintiff or Union), and are:
1. Specifically, a violation of Section 2(f) and 2(g): When former officer Mack Dykes diverted monies from the Local he was ordered to make full restitution. Once he did so Sandy Williams and I told the Local it would have to repay the bonding company in January 2006. To my knowledge the bonding company was never paid back, at least not while LP Coe was President.
2. Specifically, a violation of Section 2(f), 2(g), 2(h), and 2(I) and Internal Revenue Service Regulations: The audit further showed that the Local failed to file 1099s for the years 2003, 2004, and 2005. As the President of the Local it was LP Coe’s job to ensure these reports were filed.
3. Specifically, a violation of Section 2(f), 2(g), and 2(I): As President of the Local it was LP Coe’s job to ensure that the budget was approved to expend funds or that expenditures were taken to the body prior to the spending. NR Byrd’s audit showed that the only approved budget was in 2002, and he questioned whether that budget was approved because the minutes at that meeting showed there was no quorum. The minutes reflect that the Local continued to conduct the meeting and expend funds even though there was not a quorum present.
4. Specifically, a violation of Section 2(f), 2(g), 2(h), and 2(I): In reviewing the LM reports signed by LP Coe in February 2001 and 2003 it was found that the end of report period 2000 shows $48,688.00; however the beginning report for 2001 shows $34,828.00. This would mean a loss of $13,840.00 in a 24 hour period. The 2003 LM report was not correct and LP Coe knew that when he signed it. The LM reports for 2002, 2004, 2004, and 2005 have been amended two or three times and still are not correct. Based on the check register that the Local provided prior to GCO requesting that we be allowed to make copies of all records it was evident that there were problems with the way the Local was conducting business. The District informed the entire Executive Board and the entire membership of the problems we found. LP Coe’s response was to say that the Executive Board would conduct an “audit” of the District’S audits because we were wrong. This misled the members into thinking that there were no problems found. This is something that cannot be tolerated.
5. Specifically, a violation of Section 2( c ), 2(f), 2(g), and Article IV, Section 10 of the Local Constitution. NR Byrd found that from 2002-2004 the Local gave loans ranging from $50.00 to $1500.00 without any criteria for selection, disbursement, or repayment agreement. Approximately mid-2004 it was brought to the Local’s attention that this was “improper practice” especially since the bylaws were silent on the subject of loans, emergency assistance, and grants. Allegedly there were loans that were approved by the health and welfare committee and the Executive Board but very few by the members. There was no line item in the budget which means all loans should be approved by the membership. The health and welfare committee disbursed the funds out of a separate account and the Treasurer did not have control of these funds. LP Coe was well aware of this and violated AFGE’s Audit, Checks, and Balances policies for financial officers. There was no accounting of the health and welfare fund to the membership and when the members asked about it they were told that it was confidential information and they could not be told.
6. Specifically, a violation of Section 2( c ), 2(f), 2(g),and 2(I): As President LP Coe was responsible for giving the Treasurer receipts for expenditures that the Local made on credit cards or with cash. LP Coe was also responsible for ensuring that quarterly audits were done in accordance with the Local’s Constitution and Bylaws. When the audit committee said there was a problem with people providing receipts it was his job to make sure the receipts were given to the Treasurer. NR Byrd’s audit shows that credit card charges in the amounts of $2,316.45 in 2002, $8,989.30 in 2003, $14,607.61 in 2004, and 29,446.54 in 2005. This totals $55,359.90 for four years. As President LP Coe never denied a stipend payment or failed to approve a trip due to insufficient documentation even though he had good reason to. If the books had been audited as required by the Local Constitution, Article VI, Section 2(h), this would have been caught.
7. Specifically, a violation of Section 2(f), 2(g), 2(h): As President LP Coe was responsible for staying with the Local budget or getting membership approval for expenditures. Also, he was required to provide a Leave and Earning Statement for any lost time payments. In 2002 the budget shows $3000.00 budgeted for lost time. LP Coe received $4,180.00 and former Treasurer Jim Naff received $2,182.50 for lost time in 2002. This means they were over budget by $3,362.50. In 2003 LP Coe received $4,680.00 and LT Naff received $937.50 without a budget. In 2004 LP Coe received $744.69 and LT Naff received $500.00. This means in a three year period $8,742.69 was spent without membership approval and no LESs for proof of lost time. LP Coe is also paid a monthly stipend for his union duties. There is nothing to shown what he did to earn that money.
8. Specifically, a violation of Section 2(f), 2(g), 2(I), and 2(j), Article III of the AFGE National Constitution, and the Local Constitution, Article III, Section 1: As President LP Coe was responsible for submitting 1187s to the agency for processing. NR Byrd’s audit reflected that based on the National roster it appeared the Local was untimely in submitting new members. Some new members were not submitted for up to 22 months. The majority took approximately one year. By NR Byrd’s calculations the Local owes National approximately $7,187.80 for 1187s submitted late during 2002-2005. LP Coe’s conduct caused AFGE to lose money. He did not provide dues deduction listings so we could check to see when these employees came on the rolls. The dues deduction listings are part of the financial records.
9. Specifically, a violation of Section 2(f) and 2(g): As President LP Coe was required to ensure all taxes were paid to the Indiana Department of Revenue. In 2001 warrant number 3507879 was issued in the amount of $130.28, in 2002 warrant number 4025776 was issued in the amount of $79.80, in 2006 warrant number 549852 was issued in the amount of $17.18 for unpaid taxes. There are two other liability numbers, one for $699.08 and one for $692.84. Based on the statement the total amount due was $1,619.27.
Upon motion of National Representative Byrd, prior to beginning hearings on July 11, 2008, Charge One was withdrawn with prejudice. Mr. Byrd represented that there was no outstanding obligation to the bonding company, as specified in Charge One, which was owed by Local 1411. Further, Mr. Byrd stated that this fact was not discovered by the Sixth District until shortly before the first day of scheduled hearings in this matter on July 11, 2008. Upon discussion with the Respondent and his representative, Mr. Byrd indicated that this was the only charge being withdrawn in this matter. Therefore, the only charges before this Arbitrator are those numbered 2 through 9 cited above.
RELEVANT SECTIONS OF ARTICLE XXIII
Portions of Article XXIII, Section 2 of the Constitution of the American Federation of Government Employees, AFL-CIO are cited in the charges; specifically paragraphs ( c ), (f), (g), (h), (I) and (j) are cited as authorities for these charges (Joint exhibit 7, p. 29):
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( c ) Violation of any provision of this Constitution or the constitution and bylaws of the local to which the member belongs;
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(f) Engaging in gross neglect of duty or conduct constituting misfeasance in office as an officer or representative of a local. The conflict resolution program is not available after the committee of investigation has preferred charges;
(g) Incompetence, negligence, or insubordination in the performance of official duties by officers or representatives or a local or council or failure or refusal to perform duties validly assigned;
(h) Committing any act of fraud, embezzlement, mismangement, or appropriating to one’s own use any money, property, or thing of value belonging to the Federation or any affiliate. The conflict resolution program is not available after the committee of investigation has preferred charges;
(I) Refusing, failing, or neglecting to deliver at specified periods or on demand, in accordance with this Constitution or the constitution and bylaws of the local to which a member belongs, a full and accurate account of all monies, properties, books, and records for examination and audit; and/or
(j) Assisting, counseling, or aiding any member or officer of the Federation or any of its affiliates to commit any of the offenses herein set forth.
BACKGROUND
The Federal Mediation and Conciliation Service’s letter of appointment of this Arbitrator to hear this matter is dated April 10, 2008. However, prior to the receipt of the appointment letter this Arbitrator was contacted by the General Counsel of the American Federation of Government Employees (herein AFGE or Union) and arranged for hearings in May of 2008 which were postponed on the motion of the Mr. Coe (herein the Respondent or Mr. Coe) due to health considerations of one of his witnesses. The hearings were rescheduled for May 30-31 and June 13-14 which were again postponed on the joint motion of the parties so as to permit an opportunity for settlement in this case without proceeding to hearings in this case. Upon failure to arrive at a negotiated settlement, hearings were once again scheduled and conducted on July 11-12 and July 25-27, 2008.
AFGE Sixth District, the Plaintiff, presented their case on July 11 and 12, 2008, with additional testimony being elicited on July 25, 2008 before resting the prosecution’s case. The Respondent presented his case from July 25 through July 28, 2008. Both parties were given a fair and full opportunity to present testimony and documents in support of their respective contentions in this matter.
The Respondent has issues with the scheduling of the hearings in this matter which were resolved to the satisfaction of the Respondent. President Gage appointed this Arbitrator, initially without consultation with the Respondent, as permitted by the application provisions of the AFGE National Constitution. The Respondent was given an opportunity to object to this appointment, and indicated that there was no objection to the service of this Arbitrator in this case.
During the course of the hearings, there were several heated exchanges between the parties. It was very clear to this Arbitrator that the parties to this dispute shared a substantial amount of personal animus. This personal animus is apparently of long-standing and apparently dates back to the prior administration of Local 1411 – approximately a decade. While it is often the case that arbitration proceedings give rise to heated exchanges, but those matters tend to be between management and union officials, not between union officials at the local and district levels. There is obviously a history that has led to these personal conflicts between several people involved in this matter. The Local President prior to this Respondent was a person who ended-up being convicted of a felony and was arrested on information supplied by the Respondent’s representative. That union official who was convicted of a crime was the technical representative for the Sixth District during the final day of hearings. This indicates that the personal animus has root causes that are both extensive and perhaps serious.[1]
Upon careful reflection, this Arbitrator is persuaded that the personal difficulties between the principles in this matter is relevant to a fair and reasonable determination of the merits of these charges. Internal disciplinary charges are like discipline in arbitration, in that they occur within a context and that context is sometimes important to the understanding of the nature of the charges and why they were brought.
The parties filed post hearing briefs on the instruction of this Arbitrator to summarize their positions on each of these charges. Those briefs were filed on August 5, 2008. The record in this matter was closed upon receipt of the transcript on August 20, 2008. The parties agreed that the Arbitrator would have thirty working days from the receipt of the transcript to submit his award, due to the extensive documentary record and five days of testimony.
POSITION OF THE UNION (PLAINTIFF)
Before the Union goes into the charges there must be some housekeeping done. First the
Union does not have to prove each and every charge to get a conviction in this case. Second, we only have to prove by a preponderance level of evidence that a reasonable person listening to the evidence as presented would come to the same conclusion as us. Also, there was a great deal of conversation from the respondent’s side on the alleged penalties the union was seeking. The following are the requested penalties; Mr. Coe receive an indefinite suspension from ever running for an elected position in AFGE, we are not asking that he lose his ability to be a union member; Mr. Coe be ordered to pay any and all amounts that the Arbitrator deems Mr. Coe owes. If an arrangement has to be made we ask that the Arbitrator set an interest rate and time period for repayment.
Charge #1 was withdrawn.
Charge #2 - The evidence does show that the Union failed to file 1099s for the years 2003, 2004, and 2005. Mr. Coe testified that he didn’t even know what a 1099 was. While ignorance of the rules may be an excuse it is not a valid defense for him neglecting his responsibilities.
Charge #3 - There was great discussion whether or not the budget was approved due to the lack of a quorum. While the minutes show there was a quorum, the Union challenged that and asked the respondent to provide signature sheets for these meetings and none were provided. The Union’s belief is that there was no quorum; therefore no approved budget.
Charge #4 - the LM reports do show a disparity, as testified to by Jim Naff and Mr. Coe. Yet they went ahead and signed the reports knowing they were not accurate. For some reason this Local could not or did not file accurate reports beginning in 2000 and ending in 2005. These types of mistakes reflect upon the Union as a whole and gives a black eye to this Local with the U.S. Department of Labor.
Charge #5 - The Union did show through testimony and evidence that loans/grants were given by Mr. Coe’s administration, with his complete approval, contrary to the advice he received from the National Office. A local union is not a loan company, nor a charitable organization. They have the responsibility to protect the Local’s assets, both tangible and intangible. Mr. Coe failed to do so.
Charge #6 - Mr. Coe was responsible as a fiduciary officer of the Local to see that when money was expended receipts were rendered. Even the testimony of former secretary/treasurer Jim Naff shows that he know where the money was going and did not feel receipts were needed. Anyone that has dealt with the financial aspect of an organization knows you must be able to account for all expenditures.
Charge #7 - The Union does not believe that Mr. Coe was entitled to any lost time due to the fact that he earned a stipend of $1800 per year for his union work. However, Mr. Coe states that he was entitled to extra payment for his weekend and after hours work. Even if that is the case, Mr. Coe provided no documentation to show that he did, in fact, do any union work during these time periods.
Charge #8 - During this trial it alleged that National recouped all monies owed to them. This is not true. It was the Local’s responsibility to input the new member into the National so that they may receive per capita tax for them. The amount of loss was because the Local was drawing money from members that the National did not even know existed and therefore could not collect per capita tax.
Charge #9 - The mere fact that there was a warrant put out for the top local officers for lack of tax payment needs no explanation. While the respondent claims there was a problem with the address it was his responsibility to insure that the Indiana Department of Revenue had the correct address and that the taxes were paid.
During the hearing the respondent did not attempt to even address the majority of these charges and did offer the slightest rebuttal to most of these charges. Due to the arguments above the Union believes that they have sustained the burden to prove most, if not all, of the charges brought against Mr. Coe. Therefore, the Union respectfully requests that Mr. Coe be found guilty and that the requested sanctions be imposed, and that Mr. Coe repay any funds found due and owing.
RESPONDENT’S POSITION
The respondent denies each of these charges.
Charge 1 - has been withdrawn.
Charge 2 - IRS Form 1099s are required to be filed but were not. Lack of a treasurer when the reports were due contributed to this oversight. 1099s are a treasurer’s responsibility; Ms. Freeman was responsible for 2003, 2004 and 2005 but refused to discharge her obligations on behalf of the Local. However, NR Byrd said that he had been instructed by AFGE Headquarters to not file these for 2003-2006. If AFGE finds the so unimportant it’s not necessary to submit them, why is Coe being charged for such an unimportant item? Treasurer Freeman has not been charged.
Charge 3 - There were budgets for 2001 through 2006 as introduced and confirmed by Treasurer Freeman. There are no prohibitions against approved spending exceeding the projected budgeted amount since it is only a plan. Quorums were established in accordance with the specific editions of Roberts Rules used by the Local.
It was the custom and practice to determine if a quorum was present prior to opening a meeting, and later if a quorum was established. We even ceased business if someone departed that might leave us without a quorum.
Charge 4 - Discrepancies in the LM-3 reports. The record shows that the 2000 ending balance of $48,688 overstated, at least, the bank balance of $42,308 less outstanding checks. The LM-3s for 2002 and 2004 were not amended; and the LM-3 for 2003 was in error because of the receipt from the bonding company (charge 1) which was not identified at the time the 2003 report was prepared.
The check registered prepared by the Plaintiff (Union exhibit 1) was discredited through testimony. Neither Mr. Scott nor Mr. Byrd did anything to validate the data they distributed; we now know that there were so many errors that it was unusable, even for rebuttal purposes. All one had to do would be to find the correct balance of the checking account. When NR Byrd read the infamous October 21, 2005 letter to the membership meeting, he did not provide any proof of his assertions, yet demanded proof that he was wrong. Mr. Coe and Mr. Naff responded to Mr. Scott pointing out the numerous errors in the document, but that responses was ignored by the District officials.
Charge 5 - Loans were never given from 2002-2004. Mr. Scott brings discredit upon himself by stating rumor and also making up “facts” about loans being made by the Local’s Executive Board and the Health and Welfare Committee and a few by the membership. Records show that disbursements were made to charitable organizations such as the Red Cross, United Way, Sickle Cell Anemia, and to support local police and fire department programs for community youth. Every disbursement in 2002 -2004 was approved by the membership and identified on the Treasurer’s Report. At no time did LP Coe authorize or approve loans to anyone. This charge should not be sustained.
Charge 6 - Receipts for expenditures. Although dollar amounts are presumed for Visa charges, before receipts, for 2002-2006, we saw that these amounts were incorrect. Verifiable data were not submitted to specifically support this charge. Mr. Coe simply used the Visa card for the business of Local 1411 and nothing else. Mr. Coe is ultimately responsible to provide receipts for the business expenses he incurred on behalf of the Union, and admits he was not always as diligent as he should have been in submitting this documentation. Mr. Coe believed that the Visa statement was sufficient, and for this he was remorseful and stands corrected. Coe is not guilty of personal benefit for anything on the Visa statement, and simply did not submit all of his receipts to the Treasurer as he should have. The data in the charges concerning these issues are not supported with evidence and should not be considered. This charge is without merit and should be dismissed.
Charge 7 - Lost time was placed before and approved by the membership. Such membership approval is not required to be budgeted. Over budget is charged but that only means that there was failure to adjust that account in that budget year, and there is no AFGE or Local 1411 requirement to do so. No proof could be provided that there was no 2003 budget. In 2004, Mr. Naff was not the treasurer but was paid $500 by the Executive Board for preparation of the 2003 year-end reports, a professional service. There is no law, regulation or rule that requires the filing an LES for a member to be paid for services rendered outside of the normal duty day. Members knew he worked long and hard, including nights and weekends, and the members approved payments to Mr. Coe to compensate him for this unusual amount of work on union business. This charge should be dismissed.
Charge 8 - SF1187s submitted untimely to various entities. NR Byrd did not perform an audit of Local 1411's books. He provided only innuendo - no proof - that some were delayed 22 months. There was no proof that any were delays in 2003 but there were delays in 2003 - 05. Half of that period Janet Freeman, current secretary/treasurer appointed by Mr. Scott was then treasurer. This is a treasurer’s duty. NR Byrd does not tell us how he arrived at $7187.50 and does not tell us to whom it is owed. In 2004, AFGE Headquarters charged Local 1411 $3550 for retroactive per capita for the 1187s dated November - December 2003 that were not input to AFGE until August 2004. $7187.50 looks like the total dues for whatever NR Byrd thinks he found. Then, only per capita due AFGE is due from that and that per capita would be less than $4000 of which $3550 was paid in 2004. There is no debt by the Local to anyone. This is another spurious assumption with numbers.
Charge 9 - Payment of the Indiana Department of Revenue taxes withheld warrants were never received by the Local. This had been resolved in October of 2006 when the matter was brought to the Local’s attention. Response to that letter showed all was resolved and nothing was owed. This charge is invalid.
In summary, it is demoralizing to see the depths of untruths and deception originated and fostered by District officials and converted into formal and meritless charges by NVP Scott who then convinced the National level officials that there was wrongdoing and this trial needed to occur. If there were problems, NVP Scott made no effort to improve the situation, neither did NR Byrd. Instead, they kept themselves informed by rumors and innuendo and extrapolated erroneous data to appear in these charges. Sure, there is some truth to some of these things, but they arise only to the level of administrative culpability, not willful and knowing violations of any AFGE rule, Department of Labor regulation or Federal law. To show their arrogance – but no proof, they untruthfully state that Mr. Coe knew the LM-3 reports were wrong when he signed them. They do not show that NVP Scott should have exercised leadership and did not. Had he done so, this would not have been a situation resulting in a lengthy and trial on meritless charges of these sorts.
ARBITRATOR’S OPINION
Each of the Plaintiff’s charges will examined, in turn, in the following paragraphs of this award to determine the merits of the charges. The decision of this Arbitrator will be based on the cited provisions of the relevant Union documents and the record of credible evidence before this Arbitrator. Upon completion of this analysis, a decision will be rendered on each the charges. Finally, conclusion and recommendations to the National President concerning the final disposition of this matter will be offered.
Before proceeding with an analysis of each of the charges brought against Mr. Coe, it is necessary to offer some observations about the overall record in this matter. A considerable body of documentary evidence and testimony was entered into this record. It must be remembered that it is not the volume of the record, but the quantum of proof which is persuasive. The credibility of witnesses and the completeness of documentation to memorialize events, expenditures, and various filings is, in general, lacking in most of the charges presented to this Arbitrator. Allegations are simply not sufficient to prevail in a fair and impartial hearing, there must be a preponderance of credible evidence such that the allegations are proven. Under each specific charge, the factual record will be critically examined.
Charge 1 – Specifically, a violation of Section 2(f) and 2(g): When former officer Mack Dykes diverted monies from the Local he was ordered to make full restitution. Once he did so Sandy Williams and I told the Local it would have to repay the bonding company in January 2006. To my knowledge the bonding company was never paid back, at least not while LP Coe was President.
Charge 1 was withdrawn by Mr. Byrd prior to the beginning of hearing on Friday, July
11, 2008.
Charge 2 – Specifically, a violation of Section 2(f), 2(g), 2(h), and 2(I) and Internal Revenue Service Regulations: The audit further showed that the Local failed to file 1099s for the years 2003, 2004, and 2005. As the President of the Local it was LP Coe’s job to ensure these reports were filed.
The Facts
Form 1099 is a document required by the Internal Revenue Service for reporting payments of various sorts made to individuals. In the proceedings here, the 1099 forms were presumably for those individuals who received payment for services rendered or for officers who received stipends. No specific evidence was proffered concerning the nature of the payments to be reported on these Forms 1099. There was evidence that payments for specific services were made and that certain officers of the Local received stipends.
There is precious little evidence in this record concerning charge 2. What evidence is in this record concerning Forms 1099 is the testimony of Mr. Scott (Transcript vol. I pp. 120-122), Mr. Byrd, (Transcript Vol. II, pp. 840-41), Mr. Coe (Transcript Vol. II, pp. 737-40) and Mr. Naff (Transcript Vol. II, pp. 615-16 and pp. 707-10).
Mr. Byrd, as Trustee of the Local, was called to testify and his testimony was that the 1099's were filed for last year, but not for the previous years, to the best of his knowledge. Mr. Byrd also testified that full and complete audits had be completed for the Local (Transcript Vol. II, p. 841) but no specific testimony was proffered concerning what those audits revealed with respect to this specific charge, save that previous years’ Form 1099s had not been filed, during the Presidency of Mr. Coe, not during the period the Local has been under trusteeship. Mr. Byrd’s testimony while credible, lacked specificity and was not corroborated by independent documentation or testimony.
Mr. Scott, National Vice President, testified at hearing. His specific testimony with respect to Charge 2 was (Transcript Vol. I p. 121):
Q. All right. Why was that charge put forth?
A. Because the Local didn’t file the 1099 and the 990s. I think that’s what it said. You all getting me frustrated. Didn’t file the 1099s, which is required by law that you file, for the years that it states in here.
And, you know, the only way that you can prove that they didn’t file them is if you go in the actual file. The actual file has the original forms in there that’s never been filled out. And the secretary/treasurer I’m sure will attest that they never were filed.
Q. But that is the reason that charge was brought forth?
A. That’s what it was about. And it’s a requirement that they be filed, requirement by law.
Mr. Naff, a former treasurer of the Local, was called to testify by Mr. Coe. Mr. Naff was apparently replaced when he changed duty stations as the Local’s treasurer by Janet Freeman in July of 2004. (Transcript Vol. II, p. 707). His testimony was (Transcript Vol.II, pp.707-711):
Q. Have you ever had occasion to look at the quality of Ms. Freeman’s performance of duties as treasurer since you’ve come back?
A. Well I’ve noticed that during the – she was – she was sworn in after the meeting on 30 June, 2004. There were no treasurer’s reports submitted for July through December ‘04. The membership did not see a treasurer’s report.
She did not prepare the 1099s for ‘04. She did not prepare the 990 for ‘04. She did not submit the IRS and Indiana tax returns, as I recall. I could be wrong on one item or two out those five or six.
That, I thought was absolutely deficient, particularly when she was receiving a stipend every month, even though the duties were not being performed. Now, that’s real poor. I mean no – yeah.
Q. When a new treasurer takes office and, yourself, when you took office, is it that treasurer’s responsibility, upon detection that in previous years something was failed to be carried out by the previous treasurer, to make sure those – especially with return to taxes and per capita taxes and all those types of things, required filings, to do those filings?
A. I hadn’t really thought about it, because when I moved into the position there wasn’t anybody around but me to do it so I just buckled down and did it to the best that I knew at the time.
Personally, on the other hand, I kind of think it’s unfair to leave a successor with all that stuff hanging out there. And partly due to not only the failure of that person but the failure of the person who signed, approved the stipend payments. Seems to me that there’s some responsibility there as well.
Q. And I don’t disagree with what you’re saying at all. But in the scenario where the previous treasurer didn’t do it for whatever reason – they didn’t file 1099s, they didn’t file LM-3s, they didn’t file whatever – how do they ever get filed, then, if the new treasurer coming in doesn’t go back and correct those errors?
If it’s part of a treasurer’s duty to do these things, and even though it’s cleaning up somebody else’s mess, who does the responsibility fall to to do that if they’re the new person in the position, as unfair as it may be?
A. Well, the question has two sides. One of them is you just arbitrarily decide, hey, guy, welcome to the club. You get to clean up all these four or five years of stuff that wen wrong or wasn’t done when it should have been. Figure it out.
The other one is, you can – I think – personally, I think you should hire somebody to take care of some of that. And, you know, even further, I personally think that the previous treasurer should be charged to send a bill to reimburse that person for that.
The treasurer and the secretary and just about all of the officers, I only recall once or twice in my time of a stipend check not being issued. So as far as I’m concerned, you get paid for it; you take the money; you do the work you’re supposed to. If you have to make up for everybody else’s malfeasance, I don’t think it’s the thing to unilaterally point to somebody and say, “Sorry about that.”
Q. Have you ever known or witnessed an officer of the Local openly state they just refused to file the reports?
A. Well, regretfully, Ms. Freeman did that about April of ‘07, I think it was.
Q. Was she the treasurer at the time?
A. Yes. She’d been elected – excuse me. Back up and make sure I got the dates right.
Q. When you discovered in your initial administration and maybe subsequently when you came back where there were – administratively things were not done the way they should be, were corrective actions put into place to remedy those inadequacies?
A. Relative to what?
Q. Either financial recordkeeping, business recordkeeping, filing of travel vouchers, accountability. I believe you testified earlier that in the previous administration you could see where nobody was accounting for much of anything.
A. That was my conclusion, yes.
Q. Okay. So when Mr. Coe took over as president and you were treasurer, were any administrative procedures put in place to begin to rectify those situations so they didn’t become repetitive?
A. First of all, had to identify them, realize they were in progress. . . .
Mr. Coe also testified concerning the issues raised in Charge 2. Mr. Coe’s testimony was that he was unaware that the 1099s had not been filed for 2003-2005 (Transcript Vol. II, p. 737). Further, Mr. Coe testified that he did not know what a Form 1099 was or how to fill one out or file it (Transcript Vol. II, p. 737). Mr. Coe testified, without rebuttal, that “Our current treasurer (Freeman) told us she refused to do them and said the District told her – Mr. Byrd, who she was in constant communication with – that she didn’t have to do them because they weren’t her responsibility since she wasn’t the treasurer at the time. So one of the reasons why they can stand here now and say these haven’t been completed is she simply refused to do it. And she told us in front of the membership, on record, she wasn’t going to do it because she didn’t have to do it.” (Transcript Vol. II, pp. 738-39).
Ms. Freeman was called to testify at hearing, and she did not offer testimony concerning Forms 1099 or her refusal to file such documents on behalf of Local 1411 (Transcript Vol. I, pp. 321-51).
Arbitrator’s Conclusions
All this Arbitrator has is a cold record from which to reconstruct the events concerning this charge. Mr. Coe does not deny that Forms 1099 were not filed, but also testified that if they were not he had no technical expertise concerning these required Internal Revenue Service tax filings. It was also his testimony that he relied on the treasurer whose responsibility it was to properly execute the duties of her office.
The record is convincing that Ms. Freeman refused, for whatever reasons, to properly execute her duties as treasurer. Mr. Coe would have the Arbitrator believe that this refusal was conspiratorial, with the Sixth District Office, and in specific with Mr. Byrd. The record fails to prove such a conspiracy, but neither does it disprove Mr. Coe’s theory. It is a conjecture, that somehow seems consistent with the open hostility that clearly exists between the Sixth District officials, and Mr. Coe and his administration.
What must be proven for this charge to be resolved in favor of the plaintiff is for it to be proven specifically what 1099s were not filed, and that Mr. Coe’s culpability in the matter was direct and clear. In this case, it is not at all clear what 1099s were required to be filed according to the 1099 Instructions and for whom. There are only presumptions in this record that there should have been 1099 Forms filed – which as Mr. Naff’s testimony demonstrates is a reasonable assumption – but assumption nonetheless without specific information about what forms should have been filed for whom. However, this short-coming is not fatal to the plaintiff’s case.
What is fatal to the plaintiff’s case, is there is no evidence that, until Mr. Naff’s discovery of the problems with these documents, and Freeman’s refusal to execute her responsibilities there was any reason for Mr. Coe to have been aware of the failings of his treasurer. It is true in an ideal world, Mr. Coe should have been aware of performance of his subordinates. However, in the administration of a local union there are elected officers with specific duties, and in the case of a treasurer, with certain requirements for technical knowledge, upon which it is not unreasonable for a Local President to rely.
Reliance, however, does not mean that internal checks – i.e., the appropriate audits, should not be in place to assure that reliance is not misplaced. This is the subject of other charges, and a discussion of those issues will be reserved for those charges.
In this case, the plaintiff must prove, with a clear preponderance of the credible evidence that Mr. Coe was culpable as charged. The specific charge is that “As the President of the Local it was LP Coe’s job to ensure these reports were filed.”
Mr. Coe is charged with violations of Sections 2(f), 2(g) - ( I ) of Article XXIII of the AFGE Constitution. The evidence does not show that Mr. Coe was grossly negligent (2(f)) because Ms. Freeman failed in her duties. There is simply no evidence which suggests that Mr. Coe was incompetent because the treasurer failed in executing her responsibilities to file the appropriate tax documents. Perhaps Mr. Coe could have been more diligent in supervising the Local’s treasurer in the performance of her duties, but this is hardly incompetence for purposes of this provision of the AFGE Constitution. There is no evidence whatsoever that Mr. Coe was guilty of any of the misdeeds listed in 2(h) of the Constitution. Finally, the culpability for failure to file Forms 1099 is properly placed with this Local’s treasurer and not with the President of the Local. In sum, the record of evidence developed to support this charge falls far short of proving any violation of Section 2 of Article XXIII of the AFGE Constitution.
It is therefore the considered opinion of this Arbitrator that Mr. Coe’s performance as supervisor of his subordinate officer could have been improved, but this record is not a basis upon which to find culpability nor impose any sanction whatsoever. Therefore, this Arbitrator finds Mr. Coe not guilty of this charge and its specifications.
Charge 3 --Specifically, a violation of Section 2(f), 2(g), and 2(I): As President of the Local it was LP Coe’s job to ensure that the budget was approved to expend funds or that expenditures were taken to the body prior to the spending. NR Byrd’s audit showed that the only approved budget was in 2002, and he questioned whether that budget was approved because the minutes at that meeting showed there was no quorum. The minutes reflect that the Local continued to conduct the meeting and expend funds even though there was not a quorum present.
The Facts
Respondent’s exhibits 3 and 4 are excerpts of the copy of Roberts Rules of Order utilized as the authority for the conduct of the business of AFGE Local 1411during its Monthly Membership Meetings. Respondent’s exhibit 3 specifically addresses the issue of a quorum and states that it is the presiding officer’s responsibility to determine that a quorum is present prior to calling a meeting to order, “although he need not announce that a quorum is present.” Proof of a quorum beyond this is not otherwise required in Roberts Rules of Order.
Joint exhibit 32 is a package of minutes of meetings of AFGE Local 1411 for calendar year 2002. Included in this package are minutes for Monthly Membership Meetings for February 27, 2002, March 27, 2002, April 24, 2002, September 25, 2002, October 30, 2002 and December 18, 2002. This package also contains minutes for Executive Board Meetings for March 13, 2002, April 10, 2002, and October 9, 2002. The minutes of each of these minutes notes that there is a quorum present, with the exception of the October 30, 2002 Monthly Membership Meeting for which the minutes specifically note that a quorum is not present.
The minutes of the February 27, 2002 Monthly Membership Meeting immediately after the call to order was recorded at 5:08 p.m. notes in bold print “QUORUM DECLARED.” The minutes for the March 27, 2002 Monthly Membership Meeting are Respondent’s exhibit 2. On the first page of Respondent’s exhibit 2 it is noted the minutes of the February 2002 Monthly Membership Meeting were passed by the membership. These minutes also note, on the second page, that a quorum is present.
Joint exhibit 33 is a package of minutes of meetings of AFGE Local 1411. The first four pages of this package of minutes are the minutes of the January 29, 2003 Monthly Membership Meeting. The minutes list the roll call of officers, and note that five other members are present for the meeting. Joint exhibit 10 is the Constitution and Bylaws of AFGE Local 1411. Page 16 and 17 contain Section 2 of the Bylaws which describes a quorum:
Section 2. Quorum. A quorum of this Local shall consist of at least five members other than elected officers who are qualified to vote. . . .
Further, the minutes of the January 29, 2003 Monthly Membership Meeting note on the front page that the Fiscal Year Budget was discussed and subsequently approved pending correction. These minutes also note on third page that a quorum was no longer present at 6:05 p.m., after that time no business was noted as being conducted save for a motion to adjourn.
Considerable testimony was given concerning quorums and approvals of budget. It is established through this testimony that there were sign-in sheets that were, at one point, kept in a book by a Sargent-at-Arms, but who has passed away. Those specific sign-in sheets were not subsequently discovered by either party, although other sign-in sheets were discovered and entered as Respondent exhibits 9 and 10. These sign-in sheets were for calendar years 2004 and 2005.
Much of the testimony concerning quorums to be found in this record is specifically refuted by the documentary record. Mr. Scott testified (Transcript Vol. I, pp. 111-112):
Q. In reviewing these minutes (Union exhibit 5, and Joint exhibits 32 and 33) did you find where they cited they had no quorums?
A. Yeah. There was some in here where they said they didn’t have a quorum.
Q. Did you see that there – at any point when they cited they had no quorum, did they end the meetings, or what did they do?
A. Normally, it was like they continued on with business. I’m just trying to remember in my mind. I think there was even cases where they expended funds, even though they didn’t have a quorum.
Q. Okay. Is that normal practice?
A. No.
Mr. Scott goes on to testify concerning his assertion that business was conducted without a quorum without being able to support those assertions with notations in any of the minutes entered into this record. The remaining testimony concerning the passage of budgets or expenditure approvals by the body is neither credible evidence or much more than the offering of opinions or arguments.
Arbitrator’s Conclusions
The evidence concerning this charge clearly and unambiguously supports Mr. Coe’s protestations of innocence. The Plaintiff must prove with the preponderance of the credible evidence that Mr. Coe somehow engaged in some misconduct or gross negligence for which internal disciplinary action is appropriate. This the Plaintiff failed to do with respect to this charge.
The very language of this charge is suspect. Clearly as presiding officer Mr. Coe is responsible to conduct the Local’s meetings, and appropriately receive budgetary authority from the membership. However, the District alleges that Mr. Coe did not obtain authority for expenditure of funds. Specifically, Mr. Coe is charged with: “NR Byrd’s audit showed that the only approved budget was in 2002, and he questioned whether that budget was approved because the minutes at that meeting showed there was no quorum.” The February 27, 2002 Monthly Membership Meeting minutes themselves demonstrate that there was a quorum present, consistent with how Roberts Rules contemplates that a quorum is determined to be present. These very same minutes show that the fiscal year budget was approved by the membership. To determine otherwise is to ignore the clear and unambiguous language of the minutes, and Roberts Rules.
The last sentence of the third charge is: “The minutes reflect that the Local continued to conduct the meeting and expend funds even though there was not a quorum present.” Although the charges do not specifically identify the minutes to which this last sentence refers, Mr. Scott’s testimony demonstrates conclusively that the minutes to which this last sentence refers is the minutes of the January 29, 2003 Monthly Membership Meeting. This last sentence of Charge 3 is a gross mis-characterization of what these minutes show. On page three, halfway down the page it is noted in bold that “No quorum at 6:05 p.m.” No business is conducted from that point, the only motion and debate that is noted after that time is a motion by Phyllis Simonton to adjourn, seconded by Mike McLoughlin, and a notation that the discussion on the motion (which is out of order occurred) and that the motion carried – which is not a motion requiring a quorum and can be done by the presiding officer upon noticing the lack of a quorum. It is up to the presiding officer, under Roberts Rules to continue with non-business activities of a meeting when a quorum is not present. There is nothing in these minutes which reflect any form mis, mal, or nonfeasance on behalf of Mr. Coe.
This charge alleges violations of Article XXIII, Sections 2 (f), (g) and (I) of the AFGE Constitution. The evidence refutes the specification of the charge, therefore the preponderance of the credible evidence cannot support an allegation of Mr. Coe’s violation of these paragraphs of Article XXIII. Therefore, this Arbitrator is persuaded that this charge not only lacks merit, but is clearly contrary to the credible evidence in this record.
Charge 4 - Specifically, a violation of Section 2(f), 2(g), 2(h), and 2(I): In reviewing the LM reports signed by LP Coe in February 2001 and 2003 it was found that the end of report period 2000 shows $48,688.00; however the beginning report for 2001 shows $34,828.00. This would mean a loss of $13,840.00 in a 24 hour period. The 2003 LM report was not correct and LP Coe knew that when he signed it. The LM reports for 2002, 2004, 2004, and 2005 have been amended two or three times and still are not correct. Based on the check register that the Local provided prior to GCO requesting that we be allowed to make copies of all records it was evident that there were problems with the way the Local was conducting business. The District informed the entire Executive Board and the entire membership of the problems we found. LP Coe’s response was to say that the Executive Board would conduct an “audit” of the District’s audits because we were wrong. This misled the members into thinking that there were no problems found. This is something that cannot be tolerated
The Facts
Form LM-3 is titled Labor Organization Annual Report and is to be used by labor organizations with less than $200,000 in annual total receipts. This form is required by the Landrum-Griffin Act (P.L. 86-257 as amended) to report to the finances of the local to the U.S. Department of Labor.
Joint exhibit 22 is Form LM-3 for calendar year 2000 (January 1, 2000 to December 31, 2000). Joint exhibit 21 is Form LM-3 for calendar year 2001 (January 1, 2001 to December 31, 2001). Charge 4 specifically states that there is a $13,840 discrepancy between the ending balance in calendar year 2000 and the beginning balance for calendar year 2001.
Item 25, column (B) on Joint exhibit 22 is the ending cash balance for calendar year 2000 and is $48,668 (this is the same as Item 31, column B which is total assets at the end of reporting period). Item 25, column A on Joint exhibit 21 is the beginning balance for calendar year 2001 and is $34,828.
Box 56 on Joint exhibit 21 is labeled ADDITIONAL INFORMATION. In box 56 there are two handwritten entries for calendar year 2001. There is a correction for item number 9, which is the office address, and a correction noted for item 25. The correction for item 25 states: “Audit of year 2000 records shows cash balance of $34,828.”
Mr. Naff was called to testify concerning the discrepancies found between Joint exhibit 22 and 21, and the entries found in item 56 of Joint exhibit 21. Mr. Naff’s testimony was (Transcript Vol. II pp. 665-667):
Q And then on J-21, the item number, no. 25, shows under column A, the start of the reporting period and that’s where that difference is being noted.
A Right.
Q Do you see that?
A Correct.
Q Can you explain that and address that, please?
A Well, it seems to me there’s a page or two missing out of J-21.
The only thing I recall about that particular difference is Mr. Oberg, the D.O.L., and I talked about that, and my explanation at the time was that, as best I could tell, that 48,000 was not correct. And particularly one instance is 42,000 was all that was in the bank account, which is really – at the end of December, it would be 42,000 minus any outstanding checks, is really what the balance should have been on the 2000 report.
I’m embarrassed to say that I prepared both of these, and I don’t recall – I don’t recall where that 48,000-dollar figure came from.
Q The conversation you had with Mr. Oberg, how did he tell you to address the difference in the figures between J-21 and J-22?
A He told me to put in a comment. That’s what I was looking for.
Q That’s on J-21.
A Well, on this copy there’s no comments –
Q On J-21?
A – attached. I mean they’re typewritten.
Q Look at the front page, down at item 56.
A Okay. Sorry. I thought there was a typewritten comments on this one, on J-21, as well, but there’s not. Okay. That was the entry that was decided to be entered to explain the difference.
Q And that was per the discussion with Mr. Oberg?
A Correct
.
.
.
Q Were these LM-3s – with what you’ve already acknowledged about the 48,000 dollar figure, were these LM-3s ever questioned or brought into dispute, other than that dollar amount, opening and closing amount, by D.O.L.?
A Not that I’m aware of.
Q And these were based on the record of the Local at the time?
A As best that I can determine them.
Q Were they accurate, as far as you were concerned?
A Which records?
Q The LM-3s, J-21 and J-22 specifically?
A Well, the 2001 I’m satisfied was valid. The one for 2000, it was put together from information – best information that was available to me.
There was additional testimony proffered concerning the LM-3s from Mr. Dykes, which, in this Arbitrator’s considered opinion was not relevant concerning this particular charge. Mr. Scott, and Mr. Coe offered testimony concerning this specific charge. The preponderance of this additional testimony concerning the LM-3s entered into this record focused, in the main, on Joint exhibit 21 and Joint exhibit 22. (Mr. Scott, Transcript Vol I, pp. 160-62). However, there was testimony concerning the LM-3s for calendar years 2002-2005. Joint exhibits 17 through 20 are Forms LM-3 for calendar years 2005 through 2002 respectively. Mr. Scott’s testimony was argumentative, and at times not responsive to the questions put to him. He did offer some relevant testimony concerning the LM-3s for 2002-2005 (Transcript Vol. I, pp. 202-203):
Q In that same sentence, I want to make sure I understand it. Are you saying that the LM reports for 2002, 2003, 2004, and 2005 have all been amended two or three times?
A No. I’m not saying all of them. I’m just saying that there’s some of them that’s been amended.
Q I’m just reading what the statement says. And it says that - -
A I mean you could fo up on the Department of Labor site and pull down the ones that was amended.
Mr. Scott further testified, that by going through the financial records of the Local it shows that the LM-3 are inaccurate. In fact, in comparing the beginning and ending balances for the LM-3s from 2002 through 2005 (Joint exhibits 17 through 20) show discrepancies between ending balances for the preceding year and what was reported as the current balance for the current year. The Local’s financial records were entered into the record for the purposes of having the Arbitrator attempt to reconstruct what should have been reported on the relevant LM-3s. Joint exhibit 23 through Joint exhibit 31 and Joint exhibit 47, and Union exhibits 1 through 8 are various financial records of Local 1411. The completeness and accuracy of these records were not established through a proper foundation, and testimony of the various custodians of these records. This massive amount of documentary evidence was entered into this record without benefit of foundation. Mr. Byrd and Mr. Sanders acknowledge that these records were not known to be complete, and secured so as to be reliable for the purposes of determining the accuracy of the LM-3s.
Mr. Coe testified concerning the LM-3s for the various years mentioned in this specific charge (Transcript Vol. II, pp. 752-756). Mr. Coe specifically denied that he knew that these records were inaccurate, and that he had relied on the treasurer to her job (Transcript Vol. II, p. 753). Further, Mr. Coe denied that he knew any of the LM-3s were incorrect when he signed them or that he attempted to misled anyone concerning these reports (Transcript Vol. II, pp. 755-56). There was no other evidence entered into this record to demonstrate the frame of mind of Mr. Coe or whether he had a priori knowledge of the accuracy or inaccuracy of any of these subject LM-3 documents.
Arbitrator’s Conclusions
The specifics in these charges, which are subject to testing through proof, are only the matters of the beginning balances for calendar year 2001 and ending balances for calendar year 2000. The creator of these documents, Mr. Naff, was called to testified, and his testimony was specific and credible. He admitted that he made the entries on these two calendar year LM-3s and that there was an error which he could not explain. He also testified that these two exhibits were created sometime in 2003 as amendments to the originals, and that he was in contact with, and received counsel from a representative of the U.S. Department of Labor in making the subject corrections. While that representative was identified, he was not called to refute Mr. Naff’s version of the events.
This Arbitrator is persuaded that there is nothing in the treatment of the 2000 and 2001 LM-3s which could be characterized as misconduct or gross negligence on the part of Mr. Coe as alleged. Mr. Naff admits that he made an error on these documents, and that it was corrected when he became aware of the problem. To err is human, and for a subordinate of the Local President to err in good faith, not attempt to cover it up, and then move to correct it is not gross negligence or misconduct on the part of either the treasurer or the official to which he reports, Mr. Coe as Local 1411 President.
Further, the remainder of this charge makes allegations that LM-3s for 2002 through 2005 were amended. This allegation seems to be based on little more than the opinions of Mr. Scott, who claimed that these amendments could be observed at the U.S. Department of Labor site. If this is the case, that proof should have been adduced in support of the assertion. Even if it could be shown that the LM-3s were amended, this is hardly proof of misconduct or of gross negligence. The simple amendment of LM-3s, even if repeated, is hardly the proper subject of discipline, unless a foundation of deceit, negligence or some substantial misconduct can be developed upon which to show that the LM-3 amendments were improper. Further, the allegation that the LM-3s are still not correct has not been demonstrated with reliable financial evidence – only allegations.
Mr. Scott’s characterization of the causes of the amendments is clearly an overstatement of what could be shown with this record. The charge that: “The 2003 LM report was not correct and LP Coe knew that when he signed it.” was denied by Mr. Coe, and no attempt was made to refute this denial. Further, the charge states that Mr. Coe’s denial of the accuracy of the District’s audits: “misled the members into thinking that there were no problems found.” This assertion is also left without the slightest attempt at showing what the membership believed or even if they knew of Mr. Coe’s denials. This sort of emotional appeal, and overreaching in making serious charges against an individual serves only to undermine the credibility that a charge might otherwise
An Arbitrator has no magic formula for ascertaining the credibility of a witness, and hence what that witness purports to know from records. One standard for determining a witness’ credibility on the witness stand is their demeanor. As the Elkouris note:[2]
. . . However, not only will the testimony of the accuser be subject to doubt and careful scrutiny if there is evidence of ill will on the accuser’s part against the accused, the same is true if the factual evidence otherwise casts doubt on the accuser’s version, or of the accuser’s testimony on its face is not reasonably credible. (Footnotes deleted)
Mr. Scott was testifying concerning LM-3 reports for calendar years 1995 through 1999 while Mr. Coe initially sat silently in a chair to Mr. Scott’s immediate left. The transcript accurately records the exchange between the two men (Transcript Vol II, p. 581):
Witness Scott: Mr. Arbitrator, can you please deal with him?
Witness Coe: What did I do?
Witness Scott: You called me “a fucking liar.”
Witness Coe: No, I did not.
Witness Scott: Yes, you did.
Witness Coe: No, I did not.
The Arbitrator found it difficult to regain order, and to obtain Mr. Scott’s cooperation in bringing the hearing back to order. At no point did this Arbitrator observe or hear Mr. Coe say anything to Mr. Scott. What became very evident during this exchange is that the accuser, Mr. Scott, harbored substantial personal animus towards Mr. Coe. Therefore, with respect to this charge, and its overreaching with respect to Mr. Coe’s state of mind, and that of the membership cannot be credited. Mr. Scott was, at best, a difficult witness who would be disorderly on the witness stand in subsequent examinations.
Finally, without a theory as to the correct entries for the LM-3s and the lack of a foundation for the financial records, it is impossible to determine from this record that there was any misconduct on the part of Mr. Coe with respect to Charge 4. What is evident is that errors were made on these reports, and they were corrected. There is nothing to suggest these forms were not prepared in good faith, or that Mr. Coe was somehow negligent in supervising the preparation of these documents.
Mr. Coe is charged with violations of paragraphs 2(f), (g), (h) and (I) of Article XXIII of the AFGE Constitution. The record here shows that Mr. Naff made and error in the preparation of the LM-3s for 2000 and 2001 which he corrected. This is not conduct attributable to Mr. Coe, hence paragraphs (f), and (g) - (h) do not apply to these facts and circumstances. The accuracy of subsequent LM-3 are the responsibilities of other treasurers and Mr. Coe is not culpable for the refusals or incompetence of the elected treasurer, subsequent to Mr. Naff. It is unfortunate that Mr. Coe did not more closely supervise this treasurer, but it is not a violation of any paragraph of Section 2 or Article XXIII.
Therefore, this Arbitrator has no reasonable alternative save to find that this charge is without merit.
Charge 5 – Specifically, a violation of Section 2( c ), 2(f), 2(g), and Article IV, Section 10 of the Local Constitution. NR Byrd found that from 2002-2004 the Local gave loans ranging from $50.00 to $1500.00 without any criteria for selection, disbursement, or repayment agreement. Approximately mid-2004 it was brought to the Local’s attention that this was “improper practice” especially since the bylaws were silent on the subject of loans, emergency assistance, and grants. Allegedly there were loans that were approved by the health and welfare committee and the Executive Board but very few by the members. There was no line item in the budget which means all loans should be approved by the membership. The health and welfare committee disbursed the funds out of a separate account and the Treasurer did not have control of these funds. LP Coe was well aware of this and violated AFGE’s Audit, Checks, and Balances policies for financial officers. There was no accounting of the health and welfare fund to the membership and when the members asked about it they were told that it was confidential information and they could not be told.
The Facts
There was testimony concerning loans and grants given by the Local during Mr. Coe’s administration. Mr. Naff was treasurer during a portion of Mr. Coe’s administration and he was called to give testimony. Mr. Naff’s testimony concerning the loans given by the Local was (Transcript Vol. II, p. 667):
Q Looking on Exhibit J-2 (list of charges) again, please. Is there anything else you want to say about the LM-3s?
A I’m just looking to see . . . Just down on the bottom of page – of comments on J-22, item 18 says emergency loan was made. That’s the only loan, as I said, I’m aware of that the Local has made.
Joint exhibit 22, the LM-3 for calendar year 2000, in item 18 shows that loans totaling more than $250 were made. The explanation attached to the LM-3 for item 18 states: “An emergency loan of $500.00 was made to member Ms. Tamala Baker. Ms. Baker has repaid the loan.”
Tamala Baker was called to testify and gave testimony. At no time did either advocate ask Ms. Baker a question concerning the loan noted on the LM-3 for calendar year 2000. (Transcript Vol. II, pp. 372 - 395).
Mr. Dykes was called to testify, and gave considerable testimony concerning loans that were made during his administration as President of Local 1411. Mr. Dykes testified that the loan to Ms. Baker was made under his administration in calendar year 2000 (Transcript Vol. II, pp. 458-59). Mr. Dykes also testified that it was his understanding that Ms. Baker had repaid the loan in full. Mr. Dykes also testified concerning his contact with the District concerning the Local giving loans to members (Transcript Vol. II, pp. 449-50):
Q Okay. Were any other members issued loan?
A Yes.
Q Under your administration?
A Yes.
Q Did N.V.P. Scott ever notify you that loans were illegal, according to AFGE?
A At the time that the loan was given to Mrs. Tamala Baker, N.V.P. Pannell was the N.V.P. at that time.
Q Okay.
A I contacted the District office and was advised by the District office that Locals are normally not in the process of giving loans. But if you did vote to give or assist the member with a loan, that you have to draw up an agreement, what the payment plan was going to be, when that payment was supposed to be made, if it wasn’t made, what action would be taken against that individual violating that – might as well say a promissory agreement.
And we drafted up that memo. And prior to those checks being issued, it was attached to the vouchers that the member received those funds.
Q But you never had a similar discussion with Mr. Scott?
A No.
Q While Mr. Scott was N.V.P. and these loans were being disbursed, were you ever brought up on charges, internal Union charges, by either District or National for issuing loans from Local’s funds?
A No.
Mr. Scott testified that loans are not to be given by Local Unions under either the Department of Labor Rules or under AFGE rules, but then immediately contradicts his own testimony, (Transcript Vol. I, pp. 129-30):
Q Why would that be a charge?
.
.
.
A Because if you read the Department of Labor rules, you're not allowed to give loans. If you do, you have to report it on your LM reports, which, it's not on there. And AFGE, in its own manual, encourages that Locals not do it, because it says what you do for one you must be able to do for all. And AFGE has taken the position that if you give one person $1,500 for a loan and every one of your members come in and want $1,500, you have to be able to give them $1,500, which could bust the Local. And so they have said you don't do it, and it has to be reported. I believe the Department of Labor rules says if it's more than $250, you have to report it on ‑‑ you have to show it on the LM report.
BY MR. BYRD:
Q Okay. If you give a loan. And there are Locals that give loans?
A Right. You have to do a repayment ‑‑
Q And ‑‑
A ‑‑ agreement.
Q ‑‑ is there something that tells the criterion of how you give that loan?
A Well, the Local was supposed to develop criteria in which they utilized ‑‑
Q And what document did that go into?
A Normally, it would go into their constitution, the Local constitution and bylaws. It should be in there.
Q Okay. Does 1411 have that in their constitution or bylaws that you're aware of?
A No, no.
Q Okay. The Local was instructed to stop giving loans; is that correct?
A Right.
Phyllis Simonton was called to testify concerning the Local’s “Health and Welfare Committee:” (Transcript Vol. II, 557-60):
Q Phyllis, do you know of a committee that was ever established that was known as the health and welfare committee?
A Yes, I do.
Q Who was the chair of that committee?
A I was.
Q And what was the purpose of that committee?
A The purpose was to help Union members who had financial problems, or needed some type of financial help in their daily lives.
Q Was there a limit on the amount of the assistance that could be provided by that committee?
A Yes, there was a limit.
Q And what was that limit?
A I do believe we limited it to $100. I think that's what was right.
Q Could it have been $150?
A It could have been $150. It's been a while.
Q Okay.
A It's been a while. Could have been $150. Hundred, $150, somewhere around there.
Q How would one go about applying for that assistance?
A Usually what they did is, we had an application online on the Website called My Family, and they could access that application and fill it out and
get it to one of the committee members or to Union president, Union vice president, somebody in office, and we would call a meeting and interview the people.
Q "We" being who?
A The committee, the people on the committee.
Q The committee, okay.
A People on the committee, the chair and the others.
Q If an application was given to either the ‑‑ if the application was given to a Union officer that was not on the committee, were those forms turned to the committee?
A Yes, those forms were turned in to the committee.
Q And the committee handled the entire proceeding ‑‑
A The committee handled the entire screening. We interviewed the person, sat and listened to why they needed any funds, told them that we will get back with them whether we would grant them assistance or not, from the beginning to the end. And even the phone call to them was made to let them know whether they were going to be granted assistance or not and
the explanation on why.
Q Okay. Was this assistance given in the form of a loan or a grant?
A Oh, there was no loans. There were grants.
Q Was there ever a requirement that they paid anything back?
A No. It was never a requirement that they paid anything back.
Further, Ms. Simonton testified concerning the creation of the Committee and the authorization for the Committee’s creation. (Transcript Vol. II, p. 569):
Q And those constitution and bylaws give the president the authority to do so; does it not?
A Yes, it does.
Q On the – was that concept of taking it from the community service committee to the health and welfare committee taken to the membership?
A Yes, it was.
Q Did the membership vote to do that?
A Yes, they did.
The testimony offered by Mr. Coe, corroborated the testimony of Ms. Simonton (Transcript Vol. II, pp. 780-82). Mr. Coe’s testimony was that this Committee came into existence in 2006 and funded itself with fund raising activities, such as bake sales. He did admit that the Local’s membership voted to give the Committee “seed” money to get started in conducting its activities.
There is other evidence of grants being made from the Local’s funds. Specifically, the minutes of the Membership Meeting of December 18, 2002 (Joint exhibit 32) shows that a grant was authorized by action of the membership on the motion of Mr. Sanders, seconded by Ms. Simonton, that a grant be authorized in the amount of $1500 for Ms. Margaret Jones to stop foreclosure on her home. No other significant testimony was proffered by either party concerning this grant.
Arbitrator’s Conclusions
There are few documents in this record concerning the issue of loans, grants or other matters in this specific charge. There is evidence of two loans which were made by this Local which did not involve advances to Local officers to conduct Union business. In both cases, the record is convincing that the loan to Ms. Baker was made during the administration of Local President Dykes and not Mr. Coe. However, there is convincing evidence that there was a grant made on behalf of Ms. Jones during Mr. Coe’s administration.
The Plaintiff makes a substantial issue of Local President Coe causing or permitting the subject “loans, emergency assistance, or grants” contrary to the strict instructions of the District Office, and inconsistent with the requirements of the bylaws of the Local and the regulations of the U.S. Department of Labor. However, no evidence was adduced to support these contentions. Quite the contrary, Ms. Simonton testified, without rebuttal, that the membership approved the expansion of the charge and the changing of the name of a standing committee. The Bylaws of the Local contains a provision which permits the President to appoint committees in “ad hoc situations which do not fall within the purview of any standing committee.” (Joint exhibit 10, p. 12) This is the provision under which Ms. Simonton thought that the Health and Welfare Committee took on expanded duties for welfare activities from the Community Service committee.
On cross examination Ms. Simonton was repeatedly asked to show in the Bylaws where the Local was authorized to spend the Union’s money for loans or grants. The framing of such a question is troublesome, and misses the point that Ms. Simonton’s testimony was that the membership and the President acted in good faith, and pursuant to what they believed their bylaws permitted. Ms. Simonton and Mr. Coe both testified that the membership approved of the creation of the Health and Welfare Committee, authorized seed money, and authorized the committee to raise the funds needed from bake sales and other private fund raising activities to fund its mission to give grants and emergency assistance. In fact, if Ms. Simonton and Mr. Coe gave credible testimony then two elements of the charge are explicable, and consistent with the theory that the Local could do precisely what it is alleged to have done. “There was no line item in the budget which means all loans should be approved by the membership. The health and welfare committee disbursed the funds out of a separate account and the Treasurer did not have control of these funds.” If the money used for the grants were extra-mural – that is raised as charitable contributions for the purpose of giving such grants, then those funds are not subject to audits and checks and balances alleged to be violated by the District.
The District also alleges that: There was no accounting of the health and welfare fund to the membership and when the members asked about it they were told that it was confidential information and they could not be told. In fact, Ms. Simonton testified that the membership was fully informed, and that no member of the body was ever told that the information would not be made available.
This Arbitrator is obliged to make his determination concerning each of these charges on the basis of the preponderance of the credible evidence. In this case, the preponderance of the credible evidence weighs heavily in favor of the Respondent. The Respondent offered specific, and clear testimony refuting this charge. On the other hand, what was offered by the Plaintiff was indefinite, often erroneous (i.e., Tamala Baker’s loan during the Dykes administration) assertions. Worse still, the Plaintiff would have the Arbitrator place constructions on the Local’s Bylaws which appear to be unduly restrictive. Further, the Plaintiff, on one hand, claims that loans and grants are barred by both the AFGE and the U.S. Department of Labor, and on the other hand, explains under what requirements loans and grants can be made. Such inconsistencies destroys the credibility of the position taken by the plaintiff in support of this charge.
The one grant that is clearly identified in this record was that given to Ms. Jones. That grant is specifically identified in the minutes on the Monthly Membership Meeting of December 18, 2002. The grant to Ms. Jones was given as the result of a motion before the body, and the body clearly acted to provide a $1500 grant, and the purpose of that grant is clearly identified in the minutes as “to stop of [sic] slow down the foreclosure.” of the member’s home by her mortgage company.
It is clear that the membership made grants, contrary to advice from the District. The record shows that these grants are probably ill-advised, but there is nothing to show that Mr. Coe was somehow culpable for the will of the membership in these matters. Perhaps with better leadership skills, Mr. Coe could have persuaded the membership not to engage in this questionable practice, but this is not misconduct or gross negligence for which Mr. Coe should suffer a sanction pursuant to Section 2 of Article XXIII. This Arbitrator is persuaded by the body of evidence and the respective arguments of the parties that this charge has no merit and Mr. Coe is not guilty of misconduct or negligence in violation of paragraphs ( c ), (f) or (g) of Article XXIII of the AFGE Constitution or of a violation of Article IV of the Local Constitution as alleged in this charge.
Charge 6 --Specifically, a violation of Section 2( c ), 2(f), 2(g),and 2( I ): As President LP Coe was responsible for giving the Treasurer receipts for expenditures that the Local made on credit cards or with cash. LP Coe was also responsible for ensuring that quarterly audits were done in accordance with the Local’s Constitution and Bylaws. When the audit committee said there was a problem with people providing receipts it was his job to make sure the receipts were given to the Treasurer. NR Byrd’s audit shows that credit card charges in the amounts of $2,316.45 in 2002, $8,989.30 in 2003, $14,607.61 in 2004, and 29,446.54 in 2005. This totals $55,359.90 for four years. As President LP Coe never denied a stipend payment or failed to approve a trip due to insufficient documentation even though he had good reason to. If the books had been audited as required by the Local Constitution, Article VI, Section 2(h), this would have been caught.
The Facts
This record has been burdened with a substantial amount of financial information, again, without benefit of foundation, or the testimony of the custodians of the information to assure that the documentation was complete and accurate. This is a particularly troubling issue when testimony from two persons without a stake in the outcome of these proceedings offered testimony concerning their observations concerning wholesale destruction of the Local’s records while the Local was in trusteeship, and the Trustee was present at the time the documents were shredded. Both Mr. Cole (Transcript Vol. II, pp. 478-90) and Mr. Uchrinscko (Transcript Vol. II, pp. 552-54) witnessed large numbers of documents being shredded by Ms. Early and Mr. Byrd. This testimony was not refuted, and the documents being shredded were not accounted for in any reliable fashion. Mr. Uchrinscko specifically identified some of the documents that were being shredded, and testified that the were financial records, and meeting minutes. It was also his testimony that there were more than one fifty-five gallon trash bag was at that point in time full of shredded documents (p. 555). This testimony was not refuted.
Mr. McLoughlin was called to testify concerning the history of audits at Local 1411. Mr. McLoughlin testified that he was chair of the Local’s audit committee for six or seven years beginning in approximately 2001 (Transcript Vol. II, p. 507). He testified that there were several years prior to his taking charge of the audit committee that no audits had occurred in the Local (Transcript Vol. II p. 508).[3] Mr. McLoughlin also testified concerning an audit conducted by Bea Thomas, and a verbal report given to the membership sometime after Mr. Naff left office and went to Columbus, Ohio (Transcript Vol II, pp.514-15).
Mr. Naff testified concerning audits (Transcript Vol. II, pp. 651-53). For calendar years 2001 and 2002 Mr. Naff claims to have received feedback from Mr. Scott suggesting that there was no problem with the Local’s finances and audits for those years. It is only after this period of time that audits become a problem for this Local.
Mr. Coe was called to testify. With respect to this specific charge Mr. Coe’s testimony was (Transcript Vol. II, pp. 798-803):
Q Do you see anything in charge no. 6 that says you failed to turn in receipts for that amount? Or do you see that it's ‑‑ that's just the amount that was on the card?
A I got from it that it's the amount on the card. And again, to my own demise, I'm thinking that all the receipts should be there. I don't know which ones they're alleging haven't been turned in, because I've never been given an opportunity to say this is this date and time. Why aren't there receipts to this?
Q What I'm asking specifically, do you see anything in this charge that says that's the amount of missing receipts, or there's a direct relationship between the amount of missing receipts and the dollar amount given for your total?
A No. That's the other kind of perplexing thing. It doesn't actually even say that. It just says credit card charges and the amounts for four years. That's what it says.
Q And you've already testified that on ‑‑ I'm going to say numerous occasions, so correct me if I misspeak here ‑‑
A Sure.
Q ‑‑ that when travel was performed, there were multiple people who went on the trip?
A Yeah. Most oftentimes, the card was used to pay for everyone in unison, because, one, we didn't want them to use their personal card, and that's the way we chose to operate the Local. So in most instances it was multiple hotel rooms. And travel, like, everyone's airline ticket would be on my charge car in my name. Rental cars are on there in my name. So everything appears as Ron Coe on the charge card.
Q The next portion talks about how President Coe never denied a stipend payment or failed to approve a trip due to insufficient documentation.
Was there ever an occasion where a stipend payment was actually withheld ‑‑
A Well, yeah.
Q ‑‑ from one or more officers?
A Well, yeah. We subsequently suspended the secretary's stipend payment, and by the will of the membership, let me add. One of the things that I think I've been accused of ‑‑ in hindsight, I believe to be somewhat true ‑‑ that I was very lax in enforcing or maybe beating up on some of our folks to make them do something. We kind of felt that it's a volunteer organization and we can't just make people do things, but we encouraged it. But that's also what prompted changes to our policies and procedures. So we denied stipend payments. And in a couple instances I can recall we had a few of our stewards who we didn't send back to training anymore for some of those very reasons, because we were very big on, if we send you to training, you're going to spend all day and you're going to attend and participate. And we had a couple instances where stewards didn't do that, and the Local had expended funds, and we didn't send them to any more training.
.
.
.
Q The last half ‑‑ go ahead.
A I want to add a caveat to that, though, when I talk about denying people payments. We weren't running a camp per se. I felt that folks were giving their own personal time in volunteering. Like any family or group, you have some of the same people volunteering to do everything on nights and weekends. So we had kind of a core group we could kind of rely on. So I was, again, a little more reluctant to deny people payment for something because they were working so hard, doing so many other things. Again, that's a judgment call.
There were several other points during the testimony of several witness in which audits were mentioned. However, there was a paucity of specificity in the remaining testimony, just accusations, generalities, and little that could be identified as credible evidence. There were also two documents entered into the record, using Mr. McLoughlin’s testimony as foundation for a manual (Respondent’s exhibit 12) and a checklist (Respondent’s exhibit 13) for how audits are to be conducted according the AFGE. Although there was substantial testimony elicited from Mr. McLoughlin concerning audits, he never testified that he actually conducted any audits of Local 1411.
Arbitrator’s Conclusions
It is axiomatic that for the moving party to prevail they must prove their case with a preponderance of the credible evidence. However, perhaps more importantly, the charge must be one which identifies specific culpability of the Respondent. This charge is deficient in specificity of the alleged culpability. It is also deficient in supporting credible evidence, like most of the remaining charges. However, this charge has other aspects which are exceedingly troubling. Each of these issues will be addressed, in turn, in the following paragraphs.
Preponderance of Credible Evidence
Mr. Coe denies the charge that: “. . . Coe never denied a stipend payment or failed to approve a trip due to insufficient documentation even though he had good reason to.” No specific evidence was provided by the Plaintiff in support of this charge, yet Mr. Coe provided a case in which he denied a stipend and gave specifics of that case, which was not refuted whatsoever by the Plaintiff.
Further, although Mr. Coe admits that he was not always diligent in providing receipts to the treasurer, it is also well established in these proceedings that there wasn’t always a treasurer to whom Mr. Coe could have provided these receipts. It is also clear that there was not a good relationship with at least one of these treasurers and Mr. Coe. Mr. Coe also testified that there were receipts kept in his office and in the treasurer’s office to support claims for reimbursement and for credit card charges, these claims were also left unrebutted.
Perhaps what is most troubling about these charges, is that it is implied that there are some underlying improprieties with the expenditures. The charge itself makes no allegation of impropriety in the actual expenditures, which would have been a serious charge of misconduct. The allegation, then simply boils down to an administrative failure to efficiently maintain records, and to, in an organized fashion keep Visa card receipts, not one of misconduct. However, it is an uphill battle to prove something does not exist, when Mr. Coe claims that a least some of the subject Visa card receipts were kept in his office or given to the treasurer. Worse still, there are other issues which are of critical importance to the record of evidence with respect to this charge.
In sum, the preponderance of the evidence concerning this charge falls far short of proven culpability or gross negligence in the conduct of Mr. Coe. At worst, his record keeping is sloppy and his supervision of the treasurer and the audit committee is left wanting and in need of significant improvement.
With respect to the Local audits, the record is more convincing. What is proven, is that audits were irregular in Local 1411. Again, as with previous charges herein examined, these difficulties appear to be correlated with who served as treasurer. Without a showing that Mr. Coe was engaged in some sort of misconduct, covering up fraudulent expenditures, or guilty, himself pursuant to Section 2 (h), of some sort of gross negligence pursuant to Section 2 (g), all that has been shown is that Mr. Coe’s performance of his duties were, at times, likely deficient – a situation to which he readily admits.
The specific dollar amounts of credit card charges are the result of Mr. Byrd’s audits of the Local’s financial records. While there are numbers to support Mr. Byrd’s findings, these numbers have not been validated by the custodian and / or creator of these records, and no foundation for the records has been laid or chain of custody shown. The quantum of proof necessary to show that Mr. Coe owes the Local for some of these charges or that he violated any paragraph of Section 2 of Article XXIII is at least a simple preponderance of the credible evidence which is absent here.
Selective Enforcement Concerning Audits
This charge against Mr. Coe contains the element: “If the books had been audited as required by the Local Constitution, Article VI, Section 2(h), this would have been caught.” Mr. McLoughlin’s unrebutted testimony was that for several years prior Mr. Naff’s tenure as treasurer of Local 1411 there were no audits conducted in the Local. It is clear that Mr. Naff was also aware of these deficiencies, and that these deficiencies had been extensively discussed with District officials.
It is clear that the AFGE requires audits and that they are not optional. What is also clear is that the District tolerated the lack of audits in this Local for a considerable period of time, both under the Dykes and the Coe administrations. Selective enforcement, particularly when the record is convincing that personal animus was harbored by the charging authority[4], cannot be tolerated in this forum. This Arbitrator is persuaded that the personal animus of Mr. Scott towards Mr. Coe together with the fact that Mr. Scott tolerated the lack of audits in administrations with whom he had more cordial relations is an unacceptable basis upon which to find misconduct or gross negligence in this charge under Section 2 of Article XXIII of the AFGE Constitution. To permit the requirement that audits be conducted to be ignored in prior administrations and then attempt to enforce those requirements without clear and fair warning of the impending enforcement is not proper, and is substantive and tacit approval of Mr. Coe’s failures here with respect to assuring audits properly occur.
Destruction of Records
The testimony of Mr. Cole and Mr. Uchrinscko was clear and unambiguous. They both witnessed Ms. Early destroying documents which comprised financial records and minutes of meetings of this Local. This destruction of documents occurred in the presence of Mr. Byrd and involved a large quantity of documents. No record of what these documents were, for what dates, and no reasons for their destruction were offered in these hearings. Without a document register or other such reliable and credible information concerning these documents, adverse inference must be made concerning the completeness of financial records, and meeting minutes must be drawn. This extends to the receipts that Mr. Coe claims were stored in the Local’s offices but were not proffered at hearing with respect to this charge.
Conclusion
The Parties’ Hearing Manual for Internal Disciplinary Trials (Joint exhibit 1) makes note that: “ . . . the procedures described in Article XXIII, Sections 4, 5, and 6 governing the conduct of hearings by local trial bodies shall be followed by the trial committee or arbitrator to assure the accused a full and fair hearing in accordance with the basic requisites of due process.” Central to this obligation, is that issues such as the destruction of records which may have been important to a proper to the determination of an adverse inference in this matter. Further, selective enforcement is also not tolerable under these facts and circumstances. Such selective enforcement under this charge is repugnant to basic fairness in the enforcement of Section 2 of Article XXIII.
The preponderance of the credible evidence in this record does not support this charge. The fact that certain dollar amounts of receipts are not found in credited audits is not necessarily misconduct or gross negligence. In this case, the record is complicated by the fact that the preponderance of the credible evidence shows that there was selective enforcement of the requirement to conduct audits, and that is problematic when there is personal animus demonstrated by the charging party against the respondent. Worse still there is also credible evidence of the destruction of a massive amount of the Local’s records by personnel associated with the District. Adverse inference is required without proof conclusive of what those records were in a case which involves the absence of records.
Mr. Coe’s conduct in this matter is hardly exemplary. His disorganization, and his failure to provide appropriate supervision of record keeping is an administrative failure that is significant. Mr. Coe also admits that he was not as diligent as he should have been in making sure he gave receipts to the treasurer, instead, believing that the Visa statements were sufficient to establish that the Local’s financial integrity was not compromised by his actions. This is an error in judgement, not incompetence or gross negligence, in this Arbitrator’s considered opinion. Mr. Coe admitted this at hearing, and was remorseful, in this Arbitrator’s considered opinion, for not exercising greater care in accounting for his expenditures. There is no evidence that he did anything improper outside of accounting for receipts, but this is still an issue that requires Mr. Coe to exercise greater care of those receipts. However, these performance issues do not rise to a level where sanctions are appropriate.
This Arbitrator is persuaded that none of the cited paragraphs of Section 2 of Article XXIII have been violated under these facts and circumstances. Clearly, without the demonstrated personal animus and selective enforcement, and without the destruction of records proven in this case, this charge may well have been sustained. However, under these facts, this Arbitrator cannot find for the Plaintiff.
Charge 7 – Specifically, a violation of Section 2(f), 2(g), 2(h): As President LP Coe was responsible for staying with the Local budget or getting membership approval for expenditures. Also, he was required to provide a Leave and Earning Statement for any lost time payments. In 2002 the budget shows $3000.00 budgeted for lost time. LP Coe received $4,180.00 and former Treasurer Jim Naff received $2,182.50 for lost time in 2002. This means they were over budget by $3,362.50. In 2003 LP Coe received $4,680.00 and LT Naff received $937.50 without a budget. In 2004 LP Coe received $744.69 and LT Naff received $500.00. This means in a three year period $8,742.69 was spent without membership approval and no LESs for proof of lost time. LP Coe is also paid a monthly stipend for his union duties. There is nothing to shown what he did to earn that money.
The Facts
This record was burdened with a massive amount of testimony concerning the propriety of payments to officers of Local 1411 for time expended on behalf of the Local without the filing of a Leave and Earning Statement (herein LES). The charge lists specific sums paid to Mr. Naff and to Mr. Coe for which no LES was filed. In essence the element of this charge concerning the LES and payments is: “This means in a three year period $8,742.69 was spent without membership approval and no LESs for proof of lost time. LP Coe is also paid a monthly stipend for his union duties. There is nothing to shown what he did to earn that money.” It is also charged that Mr. Coe failed to stay within the membership’s approved budget, and when this happened that he failed to obtain authorization for expenditures in excess of the budgeted amounts.
Mr. Scott offered the opinion than an LES is required for officers to be paid for time spent on Union business beyond that for which they are paid a stipend (Transcript Vol I, pp. 70-71):
Q We've had discussion about whether or not you need to give an LES when you take lost time. Is there a necessity to give an LES when you give ‑‑
A It has always been, since I've been National vice president and the National vice president before, when I was a National rep, that when an individual took time, that they had to give a leave‑in‑earnings statement to show that, first of all, they were on leave, because you can't be paid if you're not on
leave. You can't double‑dip.
Mr. Scott was asked to provide the authority in AFGE rules and regulations, or in the Constitution to support this expressed opinion. Mr. Scott was subsequently recalled to testify concerning what authority for opinion proffered he was able to obtain. Mr. Scott offered Union exhibit 17, which is the AFGE’s Local Officer Manual as the authority for his assertion that an LES was required for payment for officer’s time. His testimony was (Transcript Vol II, pp. 362-64):
Q And official time is granted during what hours of the day?
A It's granted during your work hours.
Q Okay. So if the standard work hours are 7:30 to 4:30, so then an individual couldn't be paid for time paid ‑‑
A Well, paid ‑‑
Q ‑‑ paid by the ‑‑
A ‑‑ U.S. –
.
.
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Q So if the agency is paying the individual from 7:30 to 4:30, they could not ‑‑ and I'm going to use the term "legally" ‑‑ they could not legally be paid lost time for those same hours?
A That is partially true. You're asking me to speculate on something, and I don't have anything in the record to show what that ‑‑ what hours was worked, none of that. And it also talks, also in here, about documentation and providing that documentation for the records so that we can track it.
Q Does it say anything in the document you just submitted ‑‑
MR. SANDERS: Which is 17? Am I correct?
ARBITRATOR DILTS: Yes.
BY MR. SANDERS:
Q About LES's?
A No. It talks about documentation. The only way that you would know whether the employee was in a pay status or not is to have an LES. That's the only way. That's the leave‑in‑earnings statement that the employer provides which says whether you worked that day or you didn't work that day.
Q Does an LES show any hours worked after duty hours?
A No, it doesn't show any hours worked after duty hours.
Q Does this document specifically identify LES's as a requirement to be paid for lost time?
A It says, "Documentation." LES's is documentation.
Q But the question is –
A I've answered your question.
Q No, you haven't.
A I'm not –
Mr. Naff testified that the LES is an Agency document, and that it was irrelevant for hours worked by a Union official outside of the regular duty day (Transcript Vol. II, p. 644-45). Mr. Coe claims to have inquired of the U.S. Department of Labor what documentation was required for officers to be reimbursed for time outside of the Agency’s regular duty day for hours worked. Mr. Coe claims he was advised that membership approval, and not agency reporting requirements were binding (Transcript Vol. II, pp. 807-808).
Further, this charge notes: “This means in a three year period $8,742.69 was spent without membership approval and no LESs for proof of lost time. LP Coe is also paid a monthly stipend for his union duties. There is nothing to shown what he did to earn that money.” The Monthly Membership Meeting minutes for April 10, 2002 (Joint exhibit 32) has an entry for item 16 which states: Lost Time, a) The membership made approval to pay the President and Treasurer for lost time for a set number of hours, b) President will probably only ask for one out of three hours worked.” The March 13, 2002 Monthly Membership Meeting minutes also show that there was membership approval for specific hours worked by Mr. Coe and by Mr. Naff.
Arbitrator’s Conclusions
Perhaps this is the most straightforward and easiest of the charges to determine its merits, Mr. Scott clearly made claims, which resulted in this charge that are clearly contrary to the preponderance of the credible evidence in this record.
Clearly, of the Monthly Membership Meeting minutes that were made available to this Arbitrator there is discussion of payments beyond the monthly stipend for officers of this Local including Mr. Coe. In two specific cases there were motions made, seconded and voted on by the membership with a quorum present, approving of additional payments to the Local officers. This approval for the subject payments by the membership is contrary to the assertions contained in this charge.
Mr. Scott, again, was argumentative, combative and evasive as a witness concerning the specifics of his charges against Mr. Coe concerning the requirement that Mr. Coe file an LES. Mr. Scott was certain on July 12, 2008 that there were regulations concerning this issue, and when he was challenged by Mr. Sanders to produce those rules and regulations, Mr. Scott produced what is labeled Union exhibit 17, which makes no requirement as described by Mr. Scott. When cross examined by Mr. Sanders, Mr. Scott, again, began to raise his voice, fidget in his seat and become combative with Mr. Sanders and when the Arbitrator attempted to regain control of the hearing Mr. Scott was argumentative with the Arbitrator. The Arbitrator’s role is as finder of fact, which requires him to be sensitive to the demeanor of witness so as to determine the credibility of witnesses. The conduct of Mr. Scott was not that of a dispassionate individual whose purpose on the stand was simply to provide evidence. Mr. Scott became an aggressive advocate of the Plaintiff’s position, and coupled with evasiveness left an impression of incredibility. Unfortunately this lack of credibility in the testimony of this witness with respect to this issue undermines the Plaintiff’s case.[5]
Although the minutes do not provide specific times and activities, they do note that there were duties performed and hours worked by the officers paid. The charge that: “There is nothing to shown what he did to earn that money” singles-out Mr. Coe[6] from among the officers paid, and is simply at odds with the minutes of the meetings at which the membership did authorize payments.
This Arbitrator is persuaded that the Agency’s LES is not a requirement, and certainly not a reasonable requirement for payment by the Local for hours worked by Local officers outside of the normal duty day. The LES is an Agency document and requirement which is not reasonably applicable to the Local union. This element of the charge is without merit.
This Arbitrator is also persuaded that the remainder of the charge, specifically concerning membership approval of payment for local officers’ time outside of that normally required for their monthly stipend is also without merit. The preponderance of the credible evidence shows that the membership was aware of what was done, and approved additional payment for hours worked by Mr. Coe and other Local officers. The result is that the charge that Section 2 (f), (g) or (h) of Article XXIII is left without support in this record of evidence. Therefore, Mr. Coe is not guilty of misconduct or gross negligence as charged.
Charge 8 --Specifically, a violation of Section 2(f), 2(g), 2(I), and 2(j), Article III of the AFGE National Constitution, and the Local Constitution, Article III, Section 1: As President LP Coe was responsible for submitting 1187s to the agency for processing. NR Byrd’s audit reflected that based on the National roster it appeared the Local was untimely in submitting new members. Some new members were not submitted for up to 22 months. The majority took approximately one year. By NR Byrd’s calculations the Local owes National approximately $7,187.80 for 1187s submitted late during 2002-2005. LP Coe’s conduct caused AFGE to lose money. He did not provide dues deduction listings so we could check to see when these employees came on the rolls. The dues deduction listings are part of the financial records.
The Facts
Union exhibits 9 through 12 are copies of Form 1187 “Request for Payroll Deductions for Labor Organization Dues.” Union exhibit 9 are Forms 1187 for calendar year 2002; Union exhibit 10 are Forms 1187 for calendar year 2003; Union exhibit 11 are Forms 1187 for calendar year 2004, and Union exhibit 12 are Forms 1187 for calendar year 2005. Union exhibits 18 through 21 are transmittal letters to DFAS Fiscal Services Office covering Forms 1187 for calendar years 2002 through 2005 respectively.
There was substantial testimony concerning Form 1187 and the processing of these forms. Mr. Scott testified: (Transcript Vol. I, pp. 246-53):
Q Well, they submit them to National.
A The Local submits them to National ‑‑
Q Yes.
A ‑‑ so that National has a copy so that we know how much we got to pay out for each one. But it's you guys' responsibility to submit them to the agency so that the agency can put them on dues deduction.
Q Nobody's disputing that.
A Okay.
Q What does National do with the 1187? Do they just get it in and they just sit there? They don't do anything with it?
A I'm sure that they ‑‑ that they file it. I mean we have to have some way to account for money that we're paying out too. I mean we can't just send out checks for $20‑ or $30,000, you know, without having some documentation. The Department of Labor holds us accountable, too, just like they hold –
Q Who issues membership numbers to members?
A International ‑‑
Q National?
A ‑‑ secretary/treasurer's office.
Q So they must do something with them other than file them? There's some kind of processing?
A When you go in and you add them into the computer, and prior to that you had add slips that you had to do and drop slips that you had to do, and the Local did them, sent them into the International, and The International put them into the computer. Now they got it so that people can put it in themselves. The Local's secretary/treasurer goes up on there, inputs that information into the ‑‑ into the computer, and asks those people.
Q Do you recall when the Local was given access to the database, when they could be entered from the Local and not processed by National?
A I remember it happening under Jim Davis.
Q Do you recall the year?
A I don't remember what year. I mean I ‑‑ so much has happened.
Q Can you testify whether it was during any part of the time reflected in the charges, which is 2003, '04, or '05?
A To me it doesn't really matter, because what I said is prior to that, to people being able to enter it in, it was the secretary/treasurer of the Local's
responsibility to do the adds and drops, and to report that to National.
Q With all due respect, it matters to me. It's important to me. Its important to Mr. Coe and the presentation of his case approximately when that occurred. And here's why. Because there's been allegations made in here that ‑‑ and specifically in charge eight, that some new members were not submitted for up to 22 months.
A And that's a fact.
Q Okay. Now, is it that they were not entered by the Local into a database they had access to for 22 months, or did they get ‑‑ not get in the database at National because the Local didn't have access to the database, and the only people who could put it in the database was National? So it's very important when that occurred.
A I guess now I'm going to have to go back and do some more paperwork with the other paperwork we're going to give the Arbitrator and do the transmittals, because what you will find in that case is where the individual ‑‑ they were submitted to the agency. And the agency ‑‑ they weren't submitted to the agency when ‑‑ until 22 months later from the time that that 1187 was signed. That's when it was submitted to the agency, 22 months later, in those instances where we're talking about. This is not something that we're just saying happened. It's something that when you sit down and you look at the record and you do those transmittals, and you look at when you submitted it versus when that individual actually signed the 1187 and dated it, it was 22 months difference.
Q Okay. So it wasn't that some new members were not submitted for up to 22 months to National. It was to the agency?
A Yeah.
Q It was to the agency?
A Yeah. Which means that what happened is that individual, National laws dues, the Local laws dues ‑‑ now you guys ‑‑ well, you testified yesterday, that you were talking about that an individual became a member upon the signing of an 1187. That's what you said. What I said is that these individuals for 22 months, they were not ‑‑ even though they had signed an 1187, it wasn't submitted to the agency for 22 months, which means that the Local lost money, the National lost money.
And if that individual had died, the Local would have had to pay that death benefit out of his pocket.
Q Okay. But you clarified what I wanted to know on the issue of where it was submitted.
A Right. Which is what I testified ‑‑
Q Thank you.
A ‑‑ yesterday.
Q Thank you. How does ‑‑ when a Local owes National money –
A Uh‑huh.
Q ‑‑ or if District says a Local owes money for something, how is that money recoverable? What's the normal procedure for getting that money from the Local?
A You mean if we say, "You owe us something"? We come in and say, "Write a check."
Q So it's either done ‑‑ typically, it's not done verbally. It's done in writing. We get –
A No.
Q ‑‑ well ‑‑
A ‑‑ sending N.R. Byrd ‑‑
Q ‑‑ I'm testifying.
A ‑‑ over there and say, "Go pick up the check from this Local."
Q In this instance, this shortage would have been a per capita tax of some sort?
A Yes.
Q How does ‑‑ how is per capita tax billed to a Local when it owes some per capita tax, some back per capita tax? In this case –
A This is done at National with a form four.
Q And a form four is?
A National could send you a form four saying, "These are your members," you know. "This is your per capita tax."
Q Is form four kind of like the bill?
A Yeah, uh‑huh.
Q So at what point was this dollar amount that's stipulated in charge no. ‑‑ the new charge no. 8, when was that figure determined?
A That figure was determined when we got the records from the Local that show that this is what National said you had, and we bumped it up against it, and this is what you said you had. And then we went back and pulled the transmittals and found out when you did all of these ‑‑ you included all of these people. When you submitted it to the agency.
Mr. Naff gave testimony on behalf of the Respondent concerning the processing of Forms 1187 by the respective levels of the Union and the Agency. Mr. Naff’s testimony was (Transcript Vol. II, pp. 668-673):
Q Hand numbered charge no. 8, I'll give you a chance to read that.
A Okay.
Q Can you give us any testimony on the validity of that charge and that dollar amount of $7,187.80?
A Not without some background information, no.
Q In reading that charge, would there have actually been any loss to the Local or to National by any supposed late processing or submission of 1187s?
A I haven't seen any of Mr. Byrd's audits, so I'm not sure how ‑‑ what his ... But can I ask one question first? What is the anniversary date? Is that the date the individual signs the 1187, the date it was entered into payroll, or the date that it enters into National's database?
Q I don't know the answer to that.
A There's a law that says that you have to be a ‑‑ a year's worth of dues, in other words. Starting from what date ‑‑ what date –
MR. BYRD: That would be when it goes into the
agency.
WITNESS NAFF: Okay.
A Using that date, I'm at a loss to understand why there ‑‑ how there could be any loss of funds for the agency ‑‑ excuse me ‑‑ for the Local. There could be a small amount of loss to the National.
And the reason ‑‑ let me try to explain my rationale. If it's the date that it goes to payroll, the individual cannot terminate for one year. So whether the 1187 went in January, February, or March, it means the Local is going to get 12 months' worth of dues unless they retire, die, or something else. And that's a loss no matter what. So that would not ‑‑ that would not appear to be a loss of any ‑‑ to the Local.
Now, if there's any loss ‑‑ and I'll put that in quotes ‑‑ to anybody, it might be to the National. I'll use an example of that. In August of ‑‑ excuse me ‑‑ in November '03, and there's something in here about a 3,000‑dollar check, there was about 36 to 40 people recruited in about a six‑week time frame. Those 1187s were not submitted promptly to National. Most of them did hit the agency in December. I've seen the transmittals on that. But the agency did not begin dues deductions until maybe February.
My recollection is from the audit, from the records that I did, was that in August '04 it was realized those 1187s had not been sent to National. They were then sent to National, whereupon National bills Local retroactive, per capita, back to the dates those people began. And that billing was $3,550 and some cents, and there was another one, 56, or something like that. So in that regard there would have been no loss to either the Local or National. And if I didn't ‑‑ that's not clear, I'll try to explain or try to clarify.
BY MR. SANDERS:
Q Let me ask a couple of questions that may help. If I'm understanding the answer correctly, it's that the payment of per capita tax to AFGE National may be delayed, but it's not lost to them because they get it eventually, even if they bill retroactively; is that correct?
A In this limited example, yes. But if you read the financial officer's manual, it says don't send the 1187s to National until after the deductions appear on the payroll.
I didn't know better, and I didn't do that when I started out as treasurer. I just sent them to everybody that was entitled to them upon preparation, so that the ‑‑ assuming, of course, everything is equal, that the payroll deductions began, as well as the membership on the database – National's database began. And those were ‑‑ my practice was to send them through 6th District. I didn't send anything directly to National.
Q So based on that testimony, is it feasible that the $7,187.80 is still owed AFGE National, since they bill retroactively?
A Well, for that example, that's true on that one. I don't know what all's included in the $7,187.50, so I'm not sure what ‑‑ I can't address the specific – what Mr. Byrd –
Q All I'm saying is, if that same process is followed, where AFGE National retroactively bills for per capita tax, once they receive them, even though they may receive the 1187s late and they bill retroactively, that same procedure is followed each time.
A Assuming if that's the case. But I'm only looking at the big one that I know of ‑‑
Q Sure.
A ‑‑ that happened in ‑‑
Q Understand.
A ‑‑ of '03. Now, there could be ‑‑ the other thing would be loss if the 1187s were not processed anywhere. But I'm not sure what all's included in Mr. Byrd's calculations.
Mr. Coe testified concerning the processing of 1187s and that he had discovered that one of the office employees, a Ms. Vance, had not processed several, and he corrected that problem when it came to his attention (Transcript Vol. II, pp. 814-15).
Arbitrator’s Conclusions
Mr. Scott’s testimony was that there were substantial delays in processing the majority of Form1187 for Local 1141. Rather than cite the authority for dues deductions and reporting membership to upper levels of the Union, Mr. Scott offered testimony based on his memory, his understanding of what had been the custom in the District, Local and International Union. Unfortunately, that testimony does not clearly establish how the processing of Forms 1187 occurs and when the proper distribution of dues occurs between the levels of the Union. While plausible, the testimony is not conclusive concerning what is owed to the National by this Local and how much, if any, money was not collected as a result of untimely processing of Forms 1187.
Mr. Naff offered testimony which appears to refute many of the assertions made by Mr. Scott, and which are contained in the charges against Mr. Coe. Mr. Naff was of the opinion that the National could retroactively bill the Union for per capita taxes which were not collected and that there were issues of timing because the Agency had to process the dues deduction authorizations before there was any collection of Union dues. When Mr. Naff was asked to determine from the evidence in this matter whether the amount cited in this charge was an accurate assessment of the money lost due to untimely processing of Forms 1187. Mr. Naff testified that he could not specifically tell what went into Mr. Byrd’s calculations, and could therefore not offer an opinion as to the accuracy of Mr. Byrd’s calculations.
In careful examination of the documentary evidence this Arbitrator notes that there are no letters of transmittal which accompany the Forms 1187 in Union exhibits 9-12. Union exhibits 18 through 21 have transmittal letters covering Forms 1187. It was clear to Mr. Byrd in his audit that there was some delay in transmitting Forms 1187 for processing. However, those delayed 1187s were not specifically identified, and no evidence was proffered concerning the frequency of such alleged delays. The Union offered a June 24, 2003 transmittal letter covering 1187s from as early as May of 2002, but the majority of these are from July and August of 2002. A sampling of these transmittals and their associated 1187s show delays of weeks sometimes months. However, it is not clear that this was common or consistent. Also it is interesting to note that many of the 1187 Forms cannot be correlated with the transmittal letters because the 1187 are dated after the date on the transmittal letter (Union 19 the first two transmittals are for a single employee Mary Howard, and there is no transmittal for the remaining 1187s several pages into the exhibit when a Jones, Heather V is discovered, but her 1187 is not the next document. There is a transmittal letter for Snow-Burnett, Darlene, dated February 7, 2003, and her 1187 is dated two days prior on February 5, 2003. The next transmittal letter is dated December 8, 200s and the six employees (out of the seven) for which we have dated 1187s were all dated December 3, 2003. Union exhibit 21 is simply a collection of transmittal letters without associated forms 1187. If those forms are in Union exhibits 9 through 12, that fact should not have been kept from the Arbitrator. It is not the Arbitrator’s role to engage in an independent investigation of the Plaintiff’s documents in an attempt to resurrect their case against Mr. Coe. However, in the interests of thoroughness this Arbitrator, at substantial expenditure of time and effort did attempt to correct Union exhibit 12 (calendar year 2005) Forms 1187 with the transmittal letters contained in Union exhibit 21.
For employee Banaszak, form 1187 is the first one in the package of Forms 1187 in Union exhibit 12 and is dated September 2, 2005. The last transmittal letter in Union exhibit 21 contains the name Banaszak, with her social security number. That transmittal letter is dated 9/19/05. Robert Alexander is the second employee in Union exhibit 12, and his undated 1187 is submitted in a transmittal letter dated September 6, 2005. Kenneth Bacon is the second employee on the September 6, 2005 transmittal and his 1187 is dated September 1, 2005. The majority of the employees on this September 6, 2005 transmittal have 1187s in Union exhibit 12 and their 1187 were executed only days before the documents were transmitted.
While it may be true that there were 1187s that were transmitted months after they were executed, the Plaintiff should have pointed these out at hearing, rather than rely on the Arbitrator to attempt to sort through literally hundreds of such documents, and attempt to discover the transmittal upon which these documents were sent to the Agency. The majority of the 1187s in this record were transmitted to the Agency within days of their execution by the member. Although for a small time, a few appear to have been delayed.
This charge is very specific amount the money owed the National according to Mr. Byrd’s audit of the relevant documents. How this figure is determined in his audit is not readily reproducible from this record of evidence. Mr. Naff testified that he could not attest to the accuracy of Mr. Byrd’s numbers, and neither could this Arbitrator.
Clearly the preponderance of the credible evidence in this record does not support a finding of merit to this charge. While there may be significant and unreasonable delays in the processing of some 1187s those are not herein identified, and the charged amount due and owning to the National is not reproducible from this record of evidence. However, Mr. Coe does admit that there were 1187s which were not filed timely and that the Local was billed retroactively for per capita due to the National. The admitted actions of Mr. Coe are, again, performance issues which do not rise to the level of misconduct or gross negligence Mr. Coe simply, again, failed to adequately supervise subordinates to assure they did their duties in a timely fashion. Again, the performance issues here fall short of incompetence, gross negligence or misconduct in violation of any of the paragraphs of Section 2 of Article XXIII. Therefore Mr. Coe is not guilty of misconduct or gross negligence concerning the specifications in this charge and no sanction may be imposed for these unsupported allegations.
Charge 9 – Specifically, a violation of Section 2(f) and 2(g): As President LP Coe was required to ensure all taxes were paid to the Indiana Department of Revenue. In 2001 warrant number 3507879 was issued in the amount of $130.28, in 2002 warrant number 4025776 was issued in the amount of $79.80, in 2006 warrant number 549852 was issued in the amount of $17.18 for unpaid taxes. There are two other liability numbers, one for $699.08 and one for $692.84. Based on the statement the total amount due was $1,619.27.
The Facts
Union exhibit 15 contains a Sheriff’s warrant, dated July 20, 2006 and a spreadsheet from the Indiana Department of Revenue, showing outstanding liabilities for AFGE Local 1411. The total of the liabilities identified in this exhibit is $1,619.27, as of October 17, 2006.
Respondent’s exhibit 15 is series of documents which are Letters of Resolution dated December 27, and December 28, 2006, two documents labeled Satisfaction of Liens both dated January 2, 2007, a Certificate of Bond for Local 1411, and photocopy of a envelop from the Indiana Department of Revenue with a presorted first class cancellation date of December 28, 2006.
The record shows that the Tax Warrants were mailed to an office that was no longer occupied by Local 1411 and that the first time Mr. Coe became aware of the warrants was when the District’s officers were photocopying the Local’s records some time in 2006 (Transcript Vol. II, pp. 821-824). Mr. Coe testified that upon being informed of the tax warrants he immediately went to the City-County building and discharged the Local’s liability. He also testified, without rebuttal, that the erroneous address included on the documents was in the database at the Indiana Department of Revenue (Transcript Vol. II, pp. 822-23). Mr. Naff also testified concerning the actions he took on behalf of the Local upon being informed of the existence of the warrants by District officials. (Transcript Vol. II pp. 673-674).
Arbitrator’s Conclusions
The record of evidence in this matter is neither burdensome or complicated. What can be gleaned from this record is that the Local had tax obligations for tax years 2001, 2002, and 2003, plus sheriff’s service fees, interest and penalties. It is also clear that these warrants were not received by the Local, rather, the District discovered these warrants when they were sent to another local, and those local officials delivered them to the District.
Mr. Coe testified without rebuttal that as soon as he became aware of the warrants he immediately discharged the Local’s liability and discovered the reason why these documents were mis-delivered to an address other than that of the offices of Local 1411. Mr. Naff’s testimony corroborates that of Mr. Coe.
The record of evidence and respective arguments of the parties is persuasive that Mr. Coe is not culpable for tax liabilities for which he would not have reasonably been expected to have knowledge. The record shows that Mr. Coe, once he became aware of the warrants, did discharge the Local’s liabilities – which is all that could be reasonably required of any Local President.
It is this Arbitrator’s considered opinion that this charge has no merit. There is no evidence that either paragraph (f) or (g) of Section 2 of Article XXIII was violated by Mr. Coe. Therefore Mr. Coe is not culpable in this matter and no sanction under this charge is appropriate under these facts and circumstances.
CONCLUSION
Mr. Coe is entitled to due process and a fair and full hearing of the charges brought against him by the Plaintiff in this matter (Joint exhibit 1, p. 20 of 24). There were several charges were brought against Mr. Coe. Many of these were compound allegations, some involving assertions which were not violations of Section 2 of Article XXIII, but simply prejudicial assertions and some actually made complaints consistent with Section 2 proscriptions.
Basic fairness requires that the preponderance of the credible evidence persuade the Arbitrator of the culpability of Mr. Coe. However, the record of evidence in this case simply fails to persuade this Arbitrator that Mr. Coe engaged in any misconduct or gross negligence, or was incompetent in the performance of his duties pursuant to the proscriptions of Section 2 of Article XXIII.
It is also very clear that Mr. Coe has difficulties in focusing on appropriate supervision of subordinates and monitoring the activities of the Local’s treasurer during certain years of his administration. Mr. Coe certainly was not an effective Local Union President in discharging these duties, but his disorganization and lack of appropriate supervisory skills cannot be characterized as a violation of Section 2.
It is also clear that there is substantial personal animus harbored by Mr. Scott towards Mr. Coe which certainly tainted several the charges brought against Mr. Coe. Lest anyone judge Mr. Scott unduly harshly, it was also clear that his personal animus for Mr. Coe was a shared dislike. Mr. Sanders and Mr. Byrd also found it difficult, at times, to remain civil towards one another. In this charged environment, it is little wonder that charges, and counter-charges would fly. What this Arbitrator would urge of the parties is that in this economic environment and hard times for organized labor, internal Union conflict of the nature observed during this hearing is counter-productive. There must be civility restored between the District and the officials in this Local Union – and particularly between the individuals who were party to this matter.
Even though Mr. Coe is not guilty of any of these charges, his performance as Local President, as noted herein, while short of incompetent was poor. Mr. Coe readily admitted that his performance was poor concerning at least two of these specific charges. To his credit he was remorseful and took responsibility for the quality of his performance in at least two of these charges. Although he was not deserving of any sanctions, his performance was such that it suggests his candidacy for Union office should be critically examined by his would-be constituents.
The Union would have had this Arbitrator bar Mr. Coe from service in an elected capacity for this union or its Local. For the Union to prevail on such a request it needed to prevail, as it noted, on at least one of these charges, and this the Union failed to do.
SUMMARY OF FINDINGS
Charge 1: Dropped with prejudice.
Charge 2: There is no demonstrated, significant misconduct. Mr. Coe’s performance as supervisor of subordinate officers was deficient, but this is a performance issue, not misconduct or gross negligence. No sanction is appropriate.
Charge 3: Not Guilty
Charge 4: Not Guilty
Charge 5: It is clear that the membership made grants, contrary to advice from the District. The record shows that these grants are probably ill-advised, but there is nothing to show that Mr. Coe was somehow culpable for the will of the membership in these matters. Perhaps with better leadership skills, Mr. Coe could have persuaded the membership not to engage in this questionable practice, but this is not misconduct or gross negligence for which Mr. Coe should suffer a sanction.
Charge 6: Audits should have been conducted, this is a performance issue, and not misconduct or gross negligence for which discipline is appropriate. No culpability or misallocation of funds has been demonstrated in this record. No sanction is appropriate.
Charge 7: Not Guilty
Charge 8: Again, Mr. Coe admits that some 1187s were not timely processed in the past and that he did correct the situation when he discovered it. An employee of the Local was not adequately supervised resulting in this problem, which seems to be rather limited in scope. Therefore, Mr. Coe’s performance as a supervisor was lax, but cannot be characterized as gross negligence or misconduct. No sanction is appropriate.
Charge 9: Not Guilty
ARBITRATOR’S AWARD AND RECOMMENDATIONS
On each of the eight (8) charges not withdrawn by the Union, the Arbitrator finds that Mr. Coe is not guilty and that no sanction is appropriate.
At Fort Wayne, Indiana
September 16, 2008:
________________________________________
David A. Dilts
Arbitrator
[1] The Court Reporter reported to this Arbitrator that Mr. Byrd and Mr. Sanders had a serious exchange in which she feared they would come to blows, and they exchanged hateful comments, and called each other vulgar names only minutes before the arrival of this Arbitrator for the fourth day of hearings. This level of hostility is unique in this Arbitrator’s experience.
[2] Elkouri and Elkouri, How Arbitration Works, sixth edition. Washington, D.C.: Bureau of National Affairs, Inc., 2003, p. 417.
[3] The testimony was indefinite. Mr. Sanders suggested to the witness the time frame 1995 to 2000, but Mr. McLoughlin stated he wasn’t sure it went back that far, but he seemed to indicate that it was prior to assuming the audit committee chairmanship, and that it had been a considerable period (several years, Transcript Vol. II, p. 507), but all of that testimony was left indefinite – even though there was a sense it was a lengthy period.
[4] See analysis in last paragraph of the Arbitrator’s conclusions concerning charge 4 above.
[5] See Elkouri and Elkouri, How Arbitration works, sixth edition, Washington, D.C. Bureau of National Affairs, Inc., 2003, pp. 413-17 for further discussion of the issues involved in weighing testimony.
[6] Again, this is consistent with the personal animus that Mr. Scott has exhibited during the hearing against Mr. Coe, see discussion in Charge 4, among other places in this Arbitrator’s decision.